Hodges v. Loisel's Model Farms, Inc. ( 1917 )

His Honor,

JOHN ST. PAUL,

rendered the opinion and decree of the Court, as follows:

This case involves only issues of fact and comes to us with a judgment by the trial Court against defendant.

Plaintiff seeks to recover the loss suffered upon a resale of certain cows sold to defendant, and rejected by the latter.

We have carefully examined the evidence and from same we conclude that plaintiff wishing to purchase some milk cows, agreed with defendant to pay sixty dollars a piece for good, young cows to be selected by one Mr. Peter Bar-bazon.

Mr. Barbazon selected eight cows and they were shipped to plaintiff. His testimony is that they were young, in the best condition, appeared to give about two and a half gallons of milk and were worth the price paid.

The cows were separated from their calves, shipped thirty miles or more by boat, and after two days trial were rejected by plaintiff as not satisfactory.

Opinion and decree, April 2nd, 1917.

We are convinced that both the length of the trial and the circumstances under which it was made, were not such as to be a fair test of milk giving qualities of these cows; and the evidence shows that when returned they were resold for practically the price paid for them.

Moreover we find that defendant in argument seems to rely upon an alleged special guarantee that the cows should give three gallons of milk.

No such guarantee is set up by way of defense, and seems never to have been mentioned in the case until the taking of the testimony began; and we are convinced that even if defendant wanted none but three gallon cows, plaintiff never did'guarantee any such qualities in the cows.

The judgment appealed from is correct.

Judgment affirmed.