White v. Miller
| Decision Date | 25 October 1906 |
| Citation | 109 N.W. 465,132 Iowa 144 |
| Parties | J. W. WHITE, Appellant, v. W. J. MILLER, Appellee |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court.--HON. JOHN F. SCOTT, Judge.
ACTION to recover part of the purchase price of a cow sold by defendant to plaintiff, upon a claim that the sale was rescinded for breach of warranty. Damages are also asked for expenses incurred in feeding the animal. Many defenses were pleaded, to some of which we shall hereinafter refer. There was a directed verdict for defendant, and plaintiff appeals. Affirmed.
Affirmed.
Edward S. White and Bert J. Engle, for Appellant.
McElroy & Cox, for appellee.
OPINION
At a public sale of fine stock, held in Omaha, Neb., in March of the year 1903, plaintiff purchased of defendant an Aberdeen Angus cow, known as "Cloverland Jet," with a bull calf six weeks old, "by her side," for the gross sum of $ 300. The animals were sold with this warranty:
A cow with calf is regarded as one animal. Every animal at purchaser's risk after being knocked down to them. Same will be cared for until the proper time for shipment arrives, when they will be turned over to the Union Stock Yards Company. Terms of sale are cash unless other arrangements are made with the owner before the sale. All animals of breeding age are guaranteed breeders, and in case of failure to breed, after a satisfactory trial, the animal may be returned, and same will be accepted, if in good condition, but we reserve the right for a period of six months to try said animal, and if said animal proves a breeder, same will be returned at your expense. If animal proves barren, the purchase price, with legal rate of interest from date of sale, will be refunded.
Plaintiff received and paid for the animals and took them to his farm in Shelby county, Iowa. After several attempts to get the cow with calf, plaintiff, in December of the year 1903, notified defendant that she could not be got with calf. To this defendant responded by suggesting a weaning of the calf and change of bulls. Again, in August of the following year plaintiff notified defendant that the cow was not a breeder, insisted upon a right to return the animal under the terms of his contract, asked defendant for shipping directions, and advised him that from that time on he would hold the cow at defendant's risk. This was unanswered, and, in September of the same year, plaintiff wrote the defendant another letter of similar import to that of the one written in August. Defendant replied to this in October asking as to the condition of the cow and as to the disposition of the calf, and saying that, Defendant in this letter did not recognize plaintiff's right to return the animal, nor did he give any shipping directions. In the meantime, however, plaintiff received a letter from Florence Miller, in which she said: "'Cloverland Jet' had a calf at foot at time of sale." And in the October letter defendant wrote: "A heifer with calf at foot is considered a breeder." Plaintiff sold the calf which he had purchased with the cow, in March of the year 1904, for the sum of $ 75, and in his petition he alleges: In none of his correspondence did he offer to return the calf to the defendant, nor did he offer to do so in his petition. In defendant's October letter he stated that he would comply strictly with the rules of his sale, asked what had become of the calf, and further said that, if the cow was returned, she must be in as good condition both in weight and quality as she was at the time of the sale, and that he would then reserve the right to breed her for six months.
The action is to recover the purchase price of the cow with damages, on the theory that the sale has been rescinded for breach of warranty, and that under the terms of that warranty plaintiff is entitled to the purchase price of the cow, which he fixes at $ 250, averring that the calf was worth not to exceed $ 50 at the time of the sale. We shall assume for the purpose of the case that the cow was not a breeder, and that she did not comply with the terms of the warranty, and we shall also assume that plaintiff made timely complaint and a sufficient offer to return the cow pursuant to the terms of the warranty. On the other side, it is conceded that plaintiff made no effort or offer to return the calf. Indeed he sold it in March of the year 1904, and could not return it. Moreover, no actual damages were shown, nor was there any testimony as to the actual value of the cow, nor as to the expense of feeding and caring for her after the offer to return. Plaintiff's action is bottomed entirely upon the terms and conditions of the warranty, and he claims that, as he has complied with all the stipulations thereof on his part, he is entitled to judgment for the purchase price of the cow. If the warranty had not provided the remedy for breach thereof, plaintiff would have had an election to rescind for breach of the terms thereof, in which event he would have been required to return everything received by him at the sale, no matter if of inconsiderable value (Allen v. Pegram, 16 Iowa 163; Coolidge v. Brigham, 42 Mass. 547, 1 Met. 547; or he might have elected to keep the property and have sued the defendant for damages for the breach. In the former case, he might recover the consideration paid, while in the latter he could only recover the actual damages suffered, which must have been established by competent proof. Jackson v. Mott, 76 Iowa 263, 41 N.W. 12. But the parties may stipulate for a special remedy in case of a breach of warranty, and in such event they are limited to and bound by the remedy thus provided. In the instant case the remedy is provided, and the sole question for our determination is: Did plaintiff comply with his part of the agreement with reference to the warranty and the breach thereof? It is not contended that he returned the calf. Indeed, he could not do so after the sale thereof; but he contends that the calf was a mere incident of the sale, and that in no event was he bound to return it.
Turning now to the warranty, we find it expressly stipulated that a cow and calf were for all purposes to be treated as one animal, and that in case breeding animals failed to breed after a satisfactory trial the animal might be returned to the seller, if in good condition, and that, if the animal proved barren, the purchase price would be refunded. The defendant (the seller) also reserved the right for the period of six months to try the animal, and, if it proved to be a breeder, to return the same at the buyer's expense. Plaintiff therefore had the right to return "the animal," if it failed to breed after a satisfactory trial, and defendant reserved the right either to accept and return the purchase price or to try the animal for six months to see if she would prove a breeder, in which case she was to be returned to the purchaser. But, if after this trial she proved to be barren, the purchase price was to be refunded. It was optional with defendant to have this six months' trial, and, as he did see fit to exercise his option, that portion of the contract is out of the case. We are thus brought down to the pivotal question. We have thus far assumed that the animal did not prove to be a breeder after a satisfactory trial by plaintiff (the buyer), and that he offered to return the cow alone to the defendant (the seller). Defendant did not accept the offer, but sought to impose new conditions upon the plaintiff. Plaintiff admits that the sale of the cow and calf was for a gross sum, and that the contract is indivisible; and he further pleaded that the calf was bought with the cow, that the calf was worth not to exceed $ 50, and that the purchase price of the cow was $ 250. Was plaintiff required to return both cow and calf in order to recover the purchase price? We think he was. The contract itself says that "cow and calf are regarded as one animal." This must have been for all purposes, not only in so far as the sale is concerned, but also for the purpose of rescission. It is the animal that was purchased which is to be returned. Were there any doubt about this that doubt disappears when we consider the phrase as to the return of the purchase price. It says, if the animal proves barren, the purchase price will be refunded. What purchase price? Manifestly the purchase price of the animal sold. The animal sold was, under the rules of the sale, a cow and calf. It could not be the purchase price of the cow alone, for there was no purchase price for her, and the contract is manifestly indivisible. Indeed, according to plaintiff's own theory, he was not entitled to recover the entire purchase price, and so he fixed the purchase price of the cow at $ 250, and of the calf at $ 50, and asked for a refund of the $ 250, with damages for the care of the cow. This is a matter of plaintiff's own creation. The contract was entire and indivisible and for a gross sum, and it was expressly stipulated that the cow and calf should be regarded as one animal. The only other construction which can be placed upon the contract is that, in the event of a breach of warranty, plaintiff was only required to return the cow, keeping the calf as a...
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