Cano v. Ladd

This is an action for breach of warranty in the sale of a cow, resulting in a verdict and judgment for the plaintiff. The only exception necessary to consider is to the denial of defendant's motion for a directed verdict made at the close of all the evidence.

Viewing the evidence most favorably to the plaintiff the following facts appeared: On May 31, 1945, the plaintiff purchased a dry cow of the defendant, which the defendant warranted to be sound in every way, including all quarters of its udder. On June 21 following, one quarter of the udder was observed to be bigger than any of the other three quarters, and to be filled with gargety milk. After the cow freshened on July 6, all that could be gotten out of this quarter was a little yellow, thick liquid. The trouble was diagnosed as mastitis, a term which means inflammation of the udder. The cow had been out at pasture, and according to the undisputed evidence of a veterinary called by the defendant, but who did not see the cow, such an inflammation may result from an injury received in the pasture, or be caused by a disease germ, and the fact that a cow had it on June 21st would not necessarily mean that she had it three weeks before on May 31st; in fact, the acute form can develop over night. The only evidence that the cow may have had mastitis on May 31st, the date of the sale, came from a farmer who first examined the cow on June 21st, and later milked her after she freshened on July 6, and all that he testified was that he had had experience with mastitis, and that he "figured she had it some time."

Using the definition of "some" as given in Webster's New International Dictionary, the expression "some time" means an unspecified but appreciable or not inconsiderable extent of time, or more than a little time. Under the circumstances, although the expression would probably mean a longer time than over night or two or three days, and possibly as long as a week or ten days, it is too indefinite to say that it means three weeks, although it might. Consequently it was entirely a matter of speculation and conjecture whether the cow had the disease on the date of sale, and that is insufficient foundation for a verdict. Wellman, Admr. v. Wales, 98 Vt. 437, 440, 129 A 317;Johnson v. Burke, 108 Vt. 164, 169, 170, 183 A 495; Sargent v.Platt, 111 Vt. 185, 190, 13 A.2d 195. Defendant's motion should have been granted.

Judgment reversed, and judgment for the defendant to recoverhis costs.