
    Flynt v. Beech
    No. 42312
    September 24, 1962
    144 So. 2d 503
    
      W. W. Dent, Collins, for appellant.
    
      No brief for appellee.
   McGehee, C. J.

In this case tbe appellee purchased from the appellant five cows and five calves at a total purchase price of $770.00. According to the testimony of the appellee it was agreed that the appellant should deliver the five cows and five calves to the appellee’s farm. Upon arrival at the farm the appellee says that the appellant only had in his truck four cows and four calves, but explained that one cow, which he called “Old Blue”, when placed upon the truck “threw a fit and ran and jumped off the truck” and that he was unable to get her back on the truck. According to the testimony of the appellee there was nothing said by the appellant at the time about “Old Blue” being sick when he explained why he had not brought her to the appellee’s farm.

It was undisputed that the appellee told the appellant that he would come and get the other cow and calf in his own pickup truck and thereby save the appellant the trouble and expense of delivering her. But according to the testimony of the appellee he did not know that this cow was down sick and unable to get up.

The proof on behalf of the appellee disclosed that he did go to Covington County where the appellant lived, on the following Saturday to get the cow and calf and learned that she was still unable to stand up and was sick. The appellee had paid the full purchase price of $770.00 for the cattle but upon the assurance that the appellant would later deliver “Old Blue” and her calf. The appellant attended to the cow for some days, hnt she finally died and he sold her to a “ rendering” plant, and the appellant also sold the calf, which the appellee was especially anxious to get, but the appellant failed to account to the appellee for the sale price.

We think that under all of the facts and circumstances this was peculiarly a case for the determination of the jury, and the jury rendered a judgment for $155.00 in favor of the appellee against the appellant, which was the agreed purchase price of “Old Blue” and her calf. We think that the judgment should and must he affirmed.

Affirmed.

Kyle, Ethridge, Gillespie and Jones, JJ., concur.  