Wis. Live Stock Ass'n v. Bowerman
| Decision Date | 02 April 1929 |
| Citation | 224 N.W. 729,198 Wis. 447 |
| Parties | WISCONSIN LIVE STOCK ASS'N v. BOWERMAN ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Municipal Court of Outagamie County; F. V. Heinemann, Judge. Reversed.
Action of replevin by the Wisconsin Live Stock Association against E. R. Bowerman and Roy Bowerman for 15 head of cattle. The defendants interposed a counterclaim for damages growing out of an alleged breach of the contract under which the Wisconsin Live Stock Association placed the defendants in possession of said cattle. Judgment was rendered in favor of defendants and against the plaintiff on both branches of the case, from which plaintiff appeals.
The Wisconsin Live Stock Association is a Wisconsin corporation with its principal place of business at Appleton, Wis., engaged in the business of raising and selling live stock. In August, 1920, the defendant E. R. Bowerman owned a farm in Outagamie county. The defendant Roy Bowerman is his son. In August, 1920, the live stock association entered into a contract with E. R. Bowerman and Roy Bowerman, whereby the live stock association agreed to deliver to said E. R. Bowerman and Roy Bowerman 12 head of registered Holstein cows and heifers, to be kept, together with their female increase, from the time so furnished and for the period of five years from and after the 15th day of June, 1921. The live stock association was also to furnish, during the life of the contract, a bull, to be grained and properly kept. The Bowermans were to care for and maintain said stock in the manner specifically detailed in the contract during the term thereof. The milk produced during the term of the contract was to belong to the Bowermans. All male calves, the increase of said stock during the term of the contract, were to belong to the live stock association. At the expiration or termination of the contract, the Bowermans were to return to the Wisconsin Live Stock Association, in a good, thrifty condition a like number of females as originally furnished, the same to be selected by the Wisconsin Live Stock Association; the balance of the females to be divided equally between the live stock association and the Bowermans.
In the fall of 1925, 14 out of 42 head of the herd were condemned as tubercular, and slaughtered, the salvage being divided between the live stock association and the Bowermans. All of the original herd was thus condemned, and at the time of the commencement of this action there remained but 21 females, the increase from the original herd. As the result of this misfortune, the first controversy under this contract arose between the parties. The condemnation took place in the month of January, 1926. The contract expired in June, 1926.
The contract provided that “at the expiration or termination of this contract, the said E. R. Bowerman & Son is to return to the Wisconsin Live Stock Association, in a good, thrifty condition, a like number of females as originally furnished, and the same are to be selected by the Wisconsin Live Stock Association, and the balance of the females to be divided equally between the Wisconsin Live Stock Association and the said E. R. Bowerman & Son.” As the term of the contract drew to a close, a question of dividing the stock pursuant to the terms of the contract arose. The live stock association insisted that it was entitled to select 8 of the 21 head to replace the original herd, the original herd having been reduced to that number by death and withdrawals mutually agreed to. The Bowermans insisted that the 21 head should be divided equally between the parties, and would consent to no other division or settlement. Two representatives of the live stock association then went to the Bowerman farm and selected 8 of the cattle to replace the original herd. This left 13 cattle, which they proceeded to divide by one drawing for the live stock association and the other for the Bowermans. Upon drawing cuts, the live stock association representative won the first choice. He first selected one, and the Bowerman representative selected another. This gave to the live stock association 7 head and the Bowermans 6 head. As the Bowermans would not consent to the removal on the part of the live stock association of the cattle so selected from the farm, an action of replevin was brought for the recovery of the 15 head of cattle claimed by the live stock association pursuant to this division.
Answering, the defendants denied that plaintiff owns the cattle described in the complaint, and denied that the plaintiff has any legal right to the possession of said stock or any property right therein, and alleged, upon information and belief, that the title to the original cattle was in R. M. Harriman and that they were registered in his name. By way of counterclaim the defendants alleged, among other things, “that at the time of the execution of said contract and the furnishing and delivering of said herd of cattle, plaintiff claimed and represented to defendant that the cattle it had actually furnished and delivered to defendants on their said farm were the ones above designated and registered as such, and that same were of the highest possible grade and breeding, thoroughbred, healthy, and free from disease, registered Holstein stock and were of the highest value and ranked as the very highest in breeding, quality milk producing properties and value, and that the cows from said herd could be sold for the very highest market price and were highly and largely sought after by breeders and dealers in stock, and that said herd was a very valuable and rare one,” and that they entered into the contract “implicitly relying upon and believing in the claims, promises and representations of plaintiff, and were induced and influenced to execute and enter into said contract thereby”; that in fact said cattle were diseased and constituted an inferior herd; that they were not owned by or even registered in the name of the plaintiff. The counterclaim further alleges “that owing to the failure of plaintiff to furnish defendants with a proper and suitable bull, as contracted and agreed, defendants were not able to breed the cattle of said herd as should and could have otherwise been done, or secure the number of offspring therefrom as might otherwise have been secured, and owing to the diseased, tubercular and weakly condition of the original herd so furnished, the cows and heifers thereof were barren and could not readily, or successfully be bred, and such herd therefore failed and refused to produce the normal or anywhere near the normal of offspring and increase, all to the damage and loss of defendants,” in the sum of $21,000.
The case was submitted to the jury in the form of a special verdict...
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