DocketNumber: No. 24,239.
Citation Numbers: 202 N.W. 713, 162 Minn. 135, 1925 Minn. LEXIS 1455
Judges: Dibell
Filed Date: 2/27/1925
Status: Precedential
Modified Date: 10/19/2024
1. The evidence sustains the jury's finding that the defendant sold the plaintiff cows infected with contagious abortion, with a warranty that they were healthy, and that he sustained damages in the sum of $510.60. The evidence sustains the finding. This issue is settled.
2. The defendant urges that there was no proper foundation laid for the testimony of the witnesses who testified to the presence of the disease. Farmers having practical experience in the care of cows, and having gained thereby knowledge of the disease, could testify that the cows were infected. It was not necessary to call a licensed veterinarian. See Pearson v. Zehr,
3. For a time all the cream checks from the farm were delivered by the creamery to the defendant. Later it was arranged that the creamery should make a division between the plaintiff and the defendant. There was no considerable difficulty and the arrangement continued 17 months. Shortly before the plaintiff left the farm, and when he was owing the defendant considerable sums, the latter insisted that under the lease and contract he was entitled to the cream checks as security for the plaintiff's obligations. The creamery, not at once, but finally, acceded to his claim. The plaintiff soon left the farm. His claim is that he could not conduct it without his share of the cream checks, and that the defendant's act was so much a breach of the contract that he was evicted and entitled to recover damages. The jury accepted this view and allowed the plaintiff $1,058.30 damages for the loss of the lease for the remaining portion of the term.
We cannot sustain the jury's finding. The plaintiff was owing the defendant. He declined to pay. The agreement and lease were *Page 138 indefinite, but there was ground for the assertion of a claim that the defendant was entitled to the products of the farm as security. Perhaps he was harsh in his dealings with his tenant. The courts were open to the plaintiff if his rights were invaded. It is evident that he was dissatisfied. The parties were not in harmony. And upon any proper measure of damages it is doubtful whether the lease was of value. It is quite probable that money was being lost all the time. On the record there should be no recovery for the loss of the lease. While a reversal leaves the issue for a new trial, it is not out of place to say that the record discloses nothing which should give the plaintiff hope for a recovery.
4. The jury's award of $4,061.19 for further damages cannot be sustained. It is unnecessary to detail the items included in it.
When the plaintiff left the farm on December 10, 1921, the defendant entered and operated it. He was a chattel mortgagee of some of the property, was a joint owner of some, and was jointly interested. He was justified in taking possession. He was not required to abandon the property. Kregel v. Cirkler,
Whether the balance of $2,727.77, less $1,058.30, the value of the lease, as found by the jury, interest allowances being made, is the proper recovery we cannot say. It is not so certainly right that we can end the litigation by making the deduction.
It should be understood that the award of damages in the sum of $510.60 is sustained. There is to be no further litigation over it. There can be no recovery for the loss of the lease for 10 months on the record as it now is. The new trial necessarily leaves the issue open, but the parties, as it now appears to us, will not find further litigation fruitful. The questions of accounting and damages for a possible conversion are open. The evidence in the record bears upon it. We do not direct the course of the new trial, but it seems that if counsel co-operate the court, upon the evidence already adduced, and additional competent evidence, if any be available and necessary, *Page 139 can end the litigation with little more expense or delay to the parties.
Reversed.