Wright v. Howe

• Decision Date: 26 June 1915
• Docket Number: 2695
• Citation: 150 P. 956,46 Utah 588
• Court: Utah Supreme Court
• Parties: WRIGHT v. HOWE, et al

150 P. 956

46 Utah 588

WRIGHT v. HOWE, et al

No. 2695

Supreme Court of Utah

June 26, 1915

Application for Rehearing, Aug. 5, 1915.

Appeal from District Court, Third District; Hon. F. C. Loofbourow Judge.

Action by S. B. Wright against Richard Howe and Frank Howe, partners under the firm and style name of Murray Coal & Lumber Company.

Judgment for plaintiff. Defendants appeal.

AFFIRMED.

David W. Moffat, for appellants.

King &amp Nibley and Samuel Russell for respondent.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The plaintiff sued the defendants to recover the value of four horses and damages for an injury to a fifth horse. It is, in substance, alleged in the complaint that the death of the four horses and the injury to the fifth were caused through the wrongful acts of the defendants, as will hereinafter appear. Defendants' answer was, in effect, a general denial.

There is a preliminary question arising upon a motion of the defendants to be disposed of first. After the case had been pending for about three years the defendants moved to dismiss the action, "for the reason that the plaintiff herein has failed and neglected to prosecute said action with reasonable diligence." While the record is not clear what ruling the court made on the motion, yet, in view that it proceeded to trial, we shall assume the court overruled the motion, and defendants have assigned the ruling as erroneous, and now urge that the court erred in not dismissing the action. There is nothing in that contention. The defendants had the same right to press the action to trial that the plaintiff had, and if they were willing to permit it to remain untried, and especially in the absence of any showing of prejudice, they cannot complain.

Proceeding now to the merits: At the trial the plaintiff, in substance, proved that in March. 1910, he was engaged in the livery business at Murray City, Utah, and at that time was the owner of four horses, which were particularly described and their value testified to: that at said time there were also other horses kept in his livery business, one of which was owned by one Dalton, who was employed by the plaintiff in said livery business; that said horses at the time were ailing somewhat, and one Dr. Locke, a veterinary, who was consulted by the plaintiff, advised him to give the horses some raw linseed oil as a physic; that the plaintiff directed his employee, Mr. Dalton, to go to the place of business of the defendants, who were dealing in linseed oil and other merchandise, and get a gallon of raw linseed oil. Mr. Dalton went to get the oil, and, regarding that matter, he, in substance, testified:

"I took a can and went over to Mr. Howe and asked him for a gallon of raw linseed oil. * * * He went and took the can and went back to the barrel and drawed a gallon from it. Q. And you asked him for raw linseed oil? A. Yes, sir. * * * Q. And did he deliver to you the oil? A. Yes, sir. * * * Q. Did he know what you wanted when you first appeared there? A. I told him I wanted it to feed to my horses. Q. Did you say anything to Mr. Howe about Mr. Wright [the plaintiff] having sent you for the oil? A. No, sir."

The witness then took the oil he obtained from Mr. Howe, one of the defendants, to the livery barn, and he and Mr. Wright, the plaintiff, administered the same to four of the horses. Mr. Wright then took the can in which the oil was brought by the witness Dalton to defendants' place of business and got another gallon of oil. The witness and Mr. Wright then gave a quart of the oil to the fifth horse. Mr. Dalton further testified:

"Then I started to take him [the fifth horse] back, and got to the door, when I seen all the rest of them foaming at the mouth; and I called Mr. Wright and told him they were sick, and he came to see them. And he ran right for the veterinary then."

The witness also said that the horse that was given some of the oil brought by Mr. Wright also got sick. He further said:

"The bay mare died that night, and the others lingered a day or two, and then four in all died."

The four horses that died, the witness said, belonged to Mr. Wright, and the one that did not die belonged to him; that it practically became worthless, and he had assigned his claim to Mr. Wright. It was then shown that, while raw linseed oil is a wholesome medicine for horses, boiled linseed oil is poisonous and deleterious to horses and cattle. The veterinary testified that he was called to see the horses that were sick on the night in question, and that the horses were poisoned. The doctor further said that he saw boiled linseed oil in a can; that the horses were sick from having been given boiled linseed oil. The witness Dalton was recalled, and said that some of the oil that was bought from defendants was left in the can; that the veterinary saw the oil that was left in the can aforesaid, some of which had been given to the horses that became sick. After showing the value of the horses and the depreciation in the value of the horse that had not died, the plaintiff rested.

It is not necessary to set forth defendants' evidence, since we rest the decision entirely upon plaintiff's evidence.

The case was tried to a jury, who returned a verdict for the plaintiff, and the defendants appeal.

The court charged the jury as follows:

"The court instructs you that any affirmation of fact respecting the quality of goods sold, made by the seller during the negotiations for the sale, if received and relied upon by the buyer, is an express warranty by the seller as to such quality of said goods."

Exception was taken to this instruction, and the giving of it is assigned as error. We remark that the charge is not a model one in a case like the one at bar. For reasons hereinafter appearing, we do not think that the defendants were prejudiced by the charge, and hence the judgment should not be reversed upon that ground. We are clearly of the opinion that both parties, as well as the court, tried the case upon a wrong theory. All through the trial of the case in the district court, and in the respective briefs of counsel in this court, the case was tried and is presented upon the theory of either an express or implied warranty of quality. While as pointed out by some of the courts, a case like the one at bar may partake more or less of what are called warranties, yet the action is not one of breach of warranty. The action is in tort for a wrong committed by the seller, rather than one for a breach of contract of warranty.

Let us examine now, the real facts for a moment. The witness Dalton went to the defendants' place of business to purchase raw linseed oil to be used for a particular purpose, which he then disclosed to one of the defendants. If the defendant had sold or delivered to Mr. Dalton raw linseed oil of an inferior grade or quality, the question of either an express or implied warranty might prevail. The defendant, however, did not sell or deliver raw linseed oil, but he sold and delivered something entirely different, namely, boiled linseed oil, which possessed some properties which were entirely different from the properties of raw linseed oil. The plaintiff thus requested, and supposed he was buying, one article possessing no harmful properties to animals, while the defendants sold him, not an inferior grade or quality of the article called for, but a different article possessing properties deleterious to animal life. This case falls squarely within the principle which controlled the case of Jones v. George, 61 Tex. 345, on page 349, 48 Am. Rep. 280. That was an action for a so-called breach of warranty. Mr. Justice Stayton, speaking for the Supreme Court of Texas, states the law governing such actions in the following words:

"It is not pretended that the seller warranted the article sold to be such a substance as would accomplish the purpose desired by the buyer; but it is certainly true that he sold and delivered it as and for 'paris green,' that it was for this the parties mutually contracted, and that the delivery of something else was not a compliance with the contract, it not being shown that the purchaser bought the substance delivered, taking upon himself not only the risk of quality, which is the matter to which warranty applies, but also of kind. It is evident that the buyer relied on and trusted the representation of the seller. If the article delivered had been 'paris green,' but of an inferior quality, then the question would arise, the seller knowing for what purpose it was bought, whether there was an implied warranty in the sale of such an article, for such a known purpose, that the article delivered should be of a quality necessary to accomplish the purpose which a good quality of 'paris green' would accomplish in the matter in which the buyer intended to use it. That, however, is not this case. The appellant contracted to buy, and the appellee contracted to sell and deliver, 'paris green,' and not some other substance; but 'chrome green,' a substance not having the properties of 'paris green,' though resembling it in appearance, was delivered. In such cases, technically, no warranty arises, but there is an implied contract that the thing sold and delivered is of the kind which the parties contracted with reference to."

The authorities cited in support of the Texas case are the following: Benjamin on Sales, section 600; Pollock's Principles of Contracts, 465; Story on Contracts, 1079. See Benjamin on Sales (7th Ed.), p. 679, where the cases are collated. See, also 2 Mechem on Sales, section 1209, where the nature of such sales is discussed. As pointed out in the Texas case, if an article is requested by...