Young v. William's
| Decision Date | 05 June 1905 |
| Parties | LOUIS L. YOUNG, Respondent, v. WILLIAM'S. VAN NATTA et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. A. F. Evans, Judge.
AFFIRMED.
Judgment affirmed.
Flournoy & Flournoy for appellants.
(1) Reliance upon an express warranty excludes an implied one. Consequently after suing in two counts, one on an express warranty and one on an implied warranty and then on closing his case in chief dismissing as to the count on the implied warranty, plaintiff cannot recover on such an implied warranty. 28 Amer. & Eng. Enc. of Law, p. 741; Norris v Reinstedler, 90 Mo.App. 629. (2) However there is no implied warranty of health in the sale of any animal nor would there be of a bull that he was a good breeder or a sure server. In order that the jury might have been left in no doubt as to the true issue, defendant's instruction B should have been given, particularly after plaintiff had presented his case on the theory of an implied warranty. Matlock v. Meyers, 64 Mo. 531; Galbreath v Carnes, 91 Mo.App. 515; Warren v. Buck, 71 Vt 44; Geroux v. Stedman, 145 Mass. 439. (3) A warranty is a contract; is a contract collateral to the contract of sale and is an agreement to make an assurance good or pay the deficiency. It is not the assurance standing alone. The naked affirmation of a fact is not a warranty, according to the best authorities, is no evidence of a warranty. This intent is to be gathered not from any single statement but from all that was said and done as well and from all facts and circumstances surrounding the transaction. Consequently plaintiff's instructions numbered 1 and 2 were erroneous. McFarland v. Newman, 9 Watts 55; Figge v. Hill, 61 Ia. 430; Phillips v. Vermillian, 91 Ill.App. 133; Lindsay v. Davis, 30 Mo. 406; Matlock v. Meyers, 64 Mo. 533; Ransberger v. Ing, 55 Mo.App. 621; Anthony v. Potts, 63 Mo.App. 520; Galbreath v. Carnes, 91 Mo.App. 516; Mfg. Co. v. Thompson, 53 Ia. 558; Tuttle v. Brown, 4 Gray 457; Barnes v. Erwin, 10 Iredell (N. C.) 226; Holmes v. Tyson, 147 Pa. St. 305; McLennan v. Ohmen, 75 Cal. 558; Jones v. Quick, 28 Ind. 125. (4) Plaintiff's instruction numbered 1 was grossly erroneous in that the question of warranty as to the bull's being a good breeder and server was taken from the jury and they were directed to find for the plaintiff, "If you find that said bull was not a good breeder and server." See cases cited to Point III. (5) The vice in plaintiff's instructions numbered 1 and 2, are in no wise cured by the proviso that the statements of defendants therein referred to were made as a "part of the contract of sale." Strictly speaking a warranty is no part of a contract of sale. It is a self existent contract, one collateral to the contract of sale. McFarland v. Newman, 9 Watts 55. A representation can be a "part of a contract of sale" and not constitute a warranty. It can be such in the way of mere commendation or description. Bank v. Anderson, 85 Mo.App. 357; Shambaugh v. Curent, 111 Ia. 121; Iron Co. v. Pope, 108 N.Y. 232. (6) On a breach of warranty some authorities hold to the rule that the measure of damages is the difference between the actual value and the contract price at the time and place of sale. The rule is generally stated as the difference between the sound value or the value if as warranted and the actual value. The rule has been stated both ways in this State. Miles v. Withers, 76 Mo.App. 91; Courtney v. Boswell, 65 Mo. 199; Layson v. Wilson, 37 Mo.App. 636. (7) Some authorities declare the measure of damages to be the difference between the value if as warranted and the actual value, not to exceed the contract price. Hook v. Stovall, 30 Ga. 418; Routh v. Caron, 64 Tex. 289. (8) There has, so far as we can find, never been a case in this State where a recovery has been had for more than the contract price, and the rule would seem to be that the contract price is a limit on the amount of recovery for general damages. Small v. Bartlett, 96 Mo.App. 550, l. c. 553; Matheney v. Stewart, 108 Mo. 73; 28 Am. & Eng. Enc. of Law, p. 839; Tatum v. Mohr, 21 Ark. 349, 355; Layson v. Wilson, 37 Mo.App. 640. (9) Plaintiff's instruction numbered 3 on the measure of damages was erroneous as the jury were directed to allow interest on such damages as they found. It was not left to their discretion. A suit for breach of warranty is one for unliquidated damages and it was improper to allow interest, let alone to give a peremptory instruction to find interest. Lewis v. Roundtree, 79 N.C. 122; Tatum v. Mohr, 21 Ark. 349; White v. Miller, 78 N.Y. 393; Mansfield v. Railway, 114 N.Y. 339; Shipman v. State, 44 Wis. 462; Dozier v. Jerman, 30 Mo. 216; Ferry Co. v. Railway, 128 Mo. 254; Nelson v. Hirsch & Son, 102 Mo.App. 498, 516; State ex. rel. v. Hope, 121 Mo. 38; Meyer v. Railway, 64 Mo. 542; Kennedy v. Railway, 63 Mo. 99; Atkinson v. Railway, 63 Mo. 367; Marshall v. Schricker, 63 Mo. 308; Laming v. Peters Shoe Co., 71 Mo.App. 652; Sanderson v. Read, 75 Ill.App. 190; Trimble v. Railway, 180 Mo. 587; Wittenberg v. Mollyneaux, 80 N.W. 824, 59 Neb. 203; R. S. of Mo. 1899, secs. 2869, 3705. The allowance of interest was reversible error. Meyer v. Railway, 64 Mo. 542; Kenney v. Railway, 63 Mo. 99; Snowden v. Waterman, 110 Ga. 99.
Frank H. Woods, Cyrus Crane and Wm. A. Knotts for respondent.
Plaintiff's instructions numbered one and two correctly state the law. Danforth v. Crookshanks, 68 Mo.App. 316; Carter v. Black, 46 Mo.App. 385; Knoepeker v. Ahman, 99 Mo.App. 32; Mfg. Co. v. Ball, 43 Mo.App. 509; Powell v. Chittick, 89 Iowa 515, 516; McClintock v. Emrick, Stoner & Co., 87 Ky. 164; Smith v. Justice, 13 Wis. 673; Walker v. Hoisington, 43 Vt. 608. (2) Either of the following expressions when made to induce a party to purchase is sufficient to constitute a warranty as to health: (a) Sound; (b) All right in every particular; (c) In perfect health and free from disease. Danforth v. Crookshank, 68 Mo.App. 316; Carter v. Black, 46 Mo. 385; McClintock v. Emerick, Stoner & Co., 87 Ky. 164, 165; Smith v. Justice, 13 Wis. 673, 674; Powell v. Chittick, 89 Ia. 513; Money v. Fisher, 92 Hun. 347; Burdick on Sales (2 Ed.), 1901, ch. 5, p. 131, par. 217; Usher, Sales Personal Property (Ed. 1886), ch. 2, sec. 375, p. 242; 2 Mechem Sales (Ed. 1901), Bk. 5, ch. 5, sec. 1244, p. 1081; Benjamin, Sales (7 Am. Ed.), Bk. 4, Pt. II, ch. 1, Amer. note No. 6, pp. 665, 666; Holmes v. Tyson, 15 L. R. A. 209, 147 Pa. St. 305; Kicher v. Comad, 9 Mont. 191. (3) The measure of damages was properly declared to be the difference between the value of the bull if he had been as warranted and his actual value as he was. Layson v. Wilson, 37 Mo.App. 636, l. c. 639; Cary v. Gruman, 4 Hill 625; Cathers v. Keever, 4 Pa. St. 168; Seigworth v. Leffel, 76 Pa. St. 476; Himes v. Kiehl, 154 Pa. St. 190; Ash v. Beck 68 S.W. (Tex.), p. 53, 55; Cummins v. Ennis, 56 At. (Del.), 377; Benj. on Sales Per. Prop. (7 Am. Ed.), Bk. 5, Pt. 2, ch. 2 Amer. note, p. 962; 3 Sutherland on Dam. (3 Ed.), par. 2, ch. 14, sec. 670, 671, p. 1976; Searles, Cases on Damages (Ed. 1895), p. 515; Sedgwick on Damages (8 Ed.), sec. 759, p. 466; Burdick on Sales (2 Ed.), ch. 5, sec. 11, p. 213; Ingham on Animals, p. 795; Biddle, Warranties, sec. 333; R. M. Benjamin, Priciples Sales (Ed. 1896), ch. 7, rule 56, pp. 225, 226; 2 Mechem on Sales (Ed. 1901), Bk. 5, ch. 4, secs. 1817, 1818, pp. 1450, 1452; Fields' Laws of Damages (Ed. 1876), sec. 272, p. 257; Wood Wayne on Damages, sec. 224. (4) Interest was properly allowed from the date of demand. Lachner v. Express Co., 72 Mo.App. 13; Trimble v. Railway, 180 Mo. 587; Goodman v. Railway, 71 Mo.App. 460, l. c., 464; Padley v. Catterlin, 64 Mo.App. 629, l. c. 647, 648; Ash v. Beck, 68 S.W. 53, 55; Harvester Wks. v. Bonnallie, 29 Minn. 373, l. c. 375; Pitsmiowsky v. Hill & Co., 37 Ia. 14; Gammon v. Abrams, 53 Wis. 323; Brown v. Doyle, 69 Minn. 543; Plow Wks. v. Niles, Scott & Co., 82 N. W. (Wis.) 571, 90 Wis. 590; Gray v. Hall, 29 Kas. 505; Smith v. Dunlap, 12 Ill. 184; Rose's Executors v. Bozeman, 41 Ala. 678; Brock v. Clark, 60 Vt. 551; Murray v. Jennings, 42 Conn. 9; Stondenmier v. Wood, 29 Ala. 558; Bonford v. Gould, 35 Ala. 265; Merrick v. Wiltse, 37 Minn. 41; Prentice v. Dike, 6 Duer (N. Y.) 220; Hale on Damages (Ed. 1896), ch. 5, sec. 61; 3 Sutherland on Damages (3 Ed.), part 2, ch. 14, sec. 1, par. 671, p. 1983; 1 Sedgwick on Damages (8 Ed.), ch. 10, sec. 320, p. 469; R. M. Benjamin, Sales (Ed. 1896), ch. 6, rule 54, p. 206; Sutherland on Damages, sec. 670, p. 1976. (4) The necessary expenses of transportation and for medical attendance were a proper element of damages as necessarily in contemplation of the parties. Murphy v. McGraw, 74 Mich. 326; Glidden v. Pooler, 50 Ill.App. 39; Short v. Mattison, 81 Ia. 638; Joy v. Bitzer, 77 Ia. 74; Love v. Ross, 89 Ia. 400; Case Plow Wks. v. Niles, Scott & Co., 90 Wis. 591; Penine v. Sherrell, 30 N. J. Law 455; Biggs & Lucas v. Rumely Co., 96 Ia. 202, 209; Hale on Damages, ch. 3, p. 60.
Action upon an alleged warranty of a Hereford bull sold by defendant to plaintiff. The petition contained three counts, the causes of the action pleaded being founded respectively upon express warranty, implied warranty and false and fraudulent representations. At the trial the last two mentioned causes were voluntarily abandoned and the cause went to the jury upon the issue of an express warranty. Plaintiff recovered judgment and defendants appealed.
The contract between the parties involved in the controversy was made in the manner following: Plaintiff, a cattle breeder and raiser doing business in Nebraska, wrote defendants--engaged in like business in Indiana--upon the subject of purchasing a Hereford bull to...
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