
    No. 27,957.
    R. M. McCullough, Appellant, v. Oren R. Bales, Appellee.
    
    (265 Pac. 1110.)
    SYLLABUS BY THE COURT.
    1. Sales — Implied Warranties — Latent Unsoundness Unknown at Time of Sale. Where a latent unsoundness of an animal exists unknown to the seller, and where he makes no representation as to its soundness, he is not liable for any loss or damage sustained by the vendee through subsequent development of whatever disease or other defect may have afflicted the animal at the time of the sale.
    2. Same — Implied Warranties- — Statement as to Condition of Cow. Where a cow was bred on July 7, a statement by her vendor that she would calve the following March, if made when she was sold on August 21, was not a warranty, but only the expression of his opinion.
    3. Sam:e — Implied Warranties — Foreign Substance in Stomach of Cow Un- . known to Vendor. One farmer sold a fine Holstein cow to another, who later took her away in apparently good condition, although she had recently been tapped for bloating. The cow gradually declined in flesh and developed symptoms of ill health and died four months after the sale. An examination of her stomach revealed the presence of many foreign substances, some of which penetrated the. stomach wall, and one article had entered the lining of the heart and caused the animal’s death. The seller was unaware of any such ailment of the cow when he sold her, and he made no representations about her other than that she was a good breeding animal. Held, that the seller was not answerable to the buyer for the loss of the cow nor for the return of the purchase price, and judgment was properly entered in his behalf.
    Sales, 35 Cyc. pp. 70 n. 42, 383 n. 6; 29 L. R. A. n. s. 202; 24 R. C. L. 202, 347; L. R. A. 1917C, 620.
    Appeal from Douglas district court; Hugh Means, judge.
    Opinion filed April 7, 1928.
    Affirmed.
    
      John J. Riling and Edward T. Riling, both of Lawrence, for the appellant.
    
      J. B. Wilson and E. H. Beck, both of Lawrence, for the appellee.
   The opinion of the court was delivered by

Dawson, J.:

This was an action by the buyer of a cow to recover the purchase price from the vendor, together with items for veterinarian’s charges, cost of feed, and expense of trucking the cow. The cow died in the possession of. the buyer some three months after she was delivered to him.

The sale was made on August 21, 1925, but the cow, a registered Holstein, was delivered to defendant September 25, 1925. A few days before the delivery, the cow had. bloated on alfalfa and the vendor had “tapped” her left side. When plaintiff came to pay for the cow and take her away defendant apprised him of this fact and offered to release him from his bargain. The cow, however, was a very valuable one, and plaintiff was anxious to become her owner, so he paid the agreed price, $300, and hauled her away in a truck. No ill effects flowed from the bloating and incision, but a few weeks later she began to go down in flesh and showed symptoms of ill health, and this evil condition became progressive, and eventually she died on December 23, 1925. A veterinarian made a post-mortem examination which revealed that her stomach was laden with nails, 22 rifle cartridges, baling wire and other metals and particles of gravel. Some of the wires had penetrated the stomach wall, causing raw places and adhesions, and one of the articles had entered the lining of the heart. The veterinarian ventured the opinion:

“These articles might have been, in the cow’s stomach for five or six months. Might take longer than six months for the number.of metals to accumulate . . . No way to tell the exact length of time. . . . The articles probably caused gastric disturbances; . . . they caused gastritis, and one of the articles which entered the lining of the heart killed the cow.”

Plaintiff’s petition alleged that defendant represented that the cow would calve in March, 1926, and that plaintiff bought her for the purpose of raising calves, and that defendant had warranted and guaranteed that the cow would breed, all of which was untrue, and that plaintiff had purchased the cow in reliance thereon. Plaintiff also alleged that the cow died as a result of having eaten nails', wire and metals, which were in the cow’s stomach at the time plaintiff purchased her from defendant.

Defendant’s answer joined issue on all questions of fact from which a liability on his part might be deduced.

A jury was waived and the cause was tried by the court, which filed a written opinion summarizing the evidence and containing informal findings of fact and conclusions of law favorable to defendant.

Judgment was entered accordingly, and plaintiff appeals, contending that the trial court reached a wrong conclusion. This argument is based upon the proposition that the cow was sold on defendant’s representation that she was capable of producing a calf, and that she was sound and all right, while the condition of the cow, as later revealed by the foreign contents of her stomach, proved that she was not capable of producing a calf, and that the evidence fairly showed that the nails, wires, cartridges, etc., were in her stomach at the time she was sold, and in consequence she was not sound at the time he purchased her.

Defendant testified that he had not given any warranty or guaranty concerning the cow’s condition; that she had already given birth to six calves; that she was only eight years old, and had been bred on July 7, 1925; that he did not guarantee her to be with calf; and defendant also testified that this particular fact could not be foretold with assurance. Plaintiff admitted on the witness stand that he had no reason to doubt that the cow was bred on July 7 as represented. But unless covered by an express warranty a statement as to when a cow will calve is only an expression of opinion. In Smith v. Johns et al., 113 Ore. 351, one of the headnotes reads:

“Statement by seller of dairy cows as to time when cows become ‘fresh’ held not ground for rescission, being merely the statement of an opinion.”

The evidence also tended to show that aside from the recent tapping for alfalfa bloat, when the cow was delivered to plaintiff on September 25 she appeared to be in good condition. And as to the tapping the testimony reads:

“It was just the same as if she wasn’t ever tapped. You could never have told it.”

The plaintiff himself testified that from appearances the cow - was all right when she was delivered to him.

About a month after the delivery of the cow, October 26, plaintiff notified defendant that the cow was not with calf, but said nothing about her being out of good physical condition at that time. The trial court’s finding was that aside from the recent bloating and tapping “the cow was in good condition” when delivered to plaintiff.

The Court: “I don’t think a person observing the cow would be able to tell at the time Mr. McCullough got her from Mr. Bales, that she was suffering from the things that eventually caused her death. . . . Don’t think there was any guilt on the part of Bales that she was with calf or that she had produced calf. . . . Bales didn’t know there was anything wrong with the cow or that these foreign substances were in her system. She didn’t die as the result of tapping.” <

The pertinent law is to this effect: Where a latent unsoundness of an animal exists unknown to the seller and where he makes no representation as to its soundness, he is not liable for any loss or damage sustained by the vendee through subsequent development of whatever disease or other defect may have afflicted the animal at the time of the sale. This rule was applied in bygone times to the purchase and sale of slaves (Brooks v. Cannon, 2 A. K. Marsh. [Ky.] 854; Shenault v. Eaton, 4 Yerg. [Tenn.] 98). It has been applied in the sale of horses (Lindsay v. Davis, 30 Mo. 406), in the sale of cattle (Morris v. Thompson, 85 Ill. 16; Puls v. Hornbeck et ux., 24 Okla. 288, 29 L. R. A., n. s., 202, and note), and in the sale of hogs (Warren v. Buck, 71 Vt. 44, 76 A. S. R. 754).

In Rhynas v. Keck, 179 Ia. 422, which was an action for damages on an alleged implied warranty that hogs sold by defendant were fit for slaughter for human food, when in fact they were infected with hog cholera, the jury expressly found that the defendant seller did not know, when he sold the hogs, that they were infected with disease. Defendant prevailed, but we can only take space to quote part of the syllabus:

“There is no implied warranty, in an executed contract of sale, against the existence of latent and nondiscoverable disease in animals sold for human consumption, even though the vendee pays a ‘sound’ price therefor.
“On the subject of implied warranties, the following principles are recognized :
“There is no implied warranty of soundness when unsoundness is hidden, is difficult to discover, and is unknown to the vendor.” (Syl. ¶¶ 1, 2. See, also, 24 R. C. L. 202, 333, 347; 35 Cyc. 69, 70.)

In the older decisions the rule even went so far as to hold that although the seller might know of some intrinsic defect or vice in the animal or thing being sold which would materially affect its value, he would not be answerable to the buyer because of a mere failure to disclose the facts (Beninger v. Corwin, 24 N. J. L. 257; Paul v. Hadley, 23 Barb. 521), but the modern trend of decided cases calls for a fairer standard of business ethics. (See annotation, Dfity of Seller to Disclose Defect in Animal, L. R. A. 1917C, 619 et seq.)

It is also settled law that where an animal is sold under an implied special warranty no liability attaches to the buyer because of defects not covered thereby. Thus, in Barton v. Dowis, 315 Mo. 226, 51 A. L. R. 494, there was a sale of a herd of hogs under an implied warranty that the animals were fit for breeding purposes. The hogs died of the cholera, and the buyer sued the vendor for damages. A judgment in plaintiff’s favor was reversed, the court saying:

“The implied warranty that the hogs purchased by plaintiff were fit for breeding purposes was not a warranty that they would not communicate a disease to other hogs. A warrantor is bound only by the terms of his covenant. If the hogs were afflicted with disease which rendered them unfit for breeding purposes, then that defect, it may be conceded, would be covered by the implied warranty. That warranty means that they were healthy and capable of procreation; that they would reproduce the kind and variety they were represented to be. There is no evidence to show that the hogs purchased by the plaintiffs were not good for breeding purposes — the purpose for which they were bought.

“Where a stallion was purchased for breeding purposes, carrying an implied warranty, the contract did not include a warranty that he was free from a disease which would be transmitted to an offspring. (Briggs v. Hunton, 87 Me. 145, 47 Am. St. Rep. 318, 32 Atl. 794. See, also, 24 R. C. L. 202; Johansmeyer v. Kearney, 37 Misc. 785, 76 N. Y. Supp. 930.)

“The implied warranty that the hogs were good for breeding could not by any stretch be construed as a covenant to hold the plaintiff harmless from any disease which the purchased hogs might have communicated to his other herd.” (p. 231.)

The judgment is affirmed.  