In this case the facts are undisputed that the defendant in error S. T. Hornbeck understood that the cattle, which were located above *Page 291 the quarantine line, were being purchased by the plaintiff in error for the purpose of being shipped to the Wichita or St. Joe market. Cattle infected with Texas fever ticks would not be classed as marketable cattle in said markets.
The court instructed the jury:
"(5) When one sells personal property he impliedly warrants that it is merchantable and reasonably suited to the use intended, and that the seller knows of no latent defects. 'Latent defects' mean such defects as are hidden. The implied warranty, however, does not cover such defects which can be discovered by ordinary prudence and caution. As to those, the law presumes the buyer to exercise his own judgment. If you find that the cattle referred to in the evidence in this case, or a portion of them, were infected with Texas fever ticks, and that such infection rendered the cattle unmerchantable, or unfit for the purpose for which they were purchased, and that such infection was a latent defect, and was not such a defect as could be discovered by ordinary prudence and caution, then the seller will be held to have impliedly warranted them to be free from such defect. Upon the other hand, if you find from the evidence that the cattle at the time they were purchased by the plaintiff were infected with Texas fever ticks, but that such defect, if you find same to be a defect, was such that could have been discovered by the plaintiff by ordinary prudence and caution, and that he failed to exercise the same, then he cannot hold the defendant to any implied warranty as to the cattle being free from such defect."
The court further instructed the jury:
"(6) The detriment caused by the breach of a warranty of the fitness of personal property for a particular use is deemed to be the excess, if any, of the value which the property would have had, at the time to which the warranty referred, if it had been complied with, over its actual value at that time, together with a fair compensation for the loss incurred by an effort in good faith to use the property for the purpose for which it was purchased. That is, the measure of damages in this case, if you find that the plaintiff is entitled to recover any damages, will be the excess, if any, of what the cattle would have been worth had they been sound and free from any infection over their actual value at the time of the purchase, together with a fair compensation for the loss incurred by the plaintiff in an effort in good faith to use the *Page 292 cattle for the purpose for which he purchased the same; but, before the plaintiff can recover damages for loss incurred in an effort to use the cattle for the purpose for which he purchased them, he must show by a preponderance of the evidence that the defendant knew, or had reasonable grounds to know, the purpose for which the plaintiff intended to use them."
And further:
"(8) If the jury believe from the evidence that the cattle which the defendant S. T. Hornbeck sold the plaintiff, Puls, had Texas fever ticks upon them at that time, and that the defendant knew that fact, or knew that they had ticks upon them, but was uncertain as to whether such ticks were fever ticks or ticks that were harmless, and if defendant also knew that plaintiff was buying such cattle for shipment to market, and defendant did not disclose the fact of such cattle being infected by such ticks, then the defendant would be liable to plaintiff for all the damages sustained by plaintiff occasioned by the depreciation in value of the cattle in the market by reason of being infected with fever ticks; and the defendant would, under such circumstances, be liable to the plaintiff for all damages sustained by the plaintiff resulting from the commingling of the cattle he bought from Hornbeck with plaintiff's other cattle."
In the case of (Grisby v. Stapleton, 94 Mo. 429, 7 S.W. 423, the court said:
"There is no claim in this case that defendant (vendee) knew these cattle were diseased. It seems to be conceded on all hands that Texas fever is a disease not easily detected, except by those having had experience with it. The cattle were sold to the defendant at a sound price. If therefore plaintiff knew they had the Texas fever, or other disease materially affecting their value upon the market, and did not disclose the same to the defendant, he was guilty of a fraudulent concealment of latent defect. It is not necessary to this defense that there should be any warranty or representations as to the health or condition of the cattle. Indeed, so far as this case is concerned, if the cattle had been pronounced by some cattlemen to have the Texas fever, and, after knowledge of that report came to the plaintiff, some of them to his knowledge died from sickness, then he should have disclosed these facts to the defendant. They were circumstances materially affecting the value of the cattle for the purposes for which they *Page 293 were bought, or for any other purpose, and of which defendant, on all the evidence, had no equal means of knowledge. To withhold these circumstances was a deceit, in the absence of proof that defendant possessed such information."
See, also: Ricks v. Dillahnty, 8 Port. (Ala.) 133; Burnett v.Stanton Pollard. 2 Ala. 184; Armstrong v. Bufford, 51 Ala. 413;Cardwell v. McClelland, 3 Sneed (Tenn.) 150; Jeffrey v.Bigelow, 13 Wend. (N.Y.) 518, 28 Am. Dec. 476; McAdams v.Cates, 24 Mo. 223; Barron v. Alexander, 27 Mo. 530.
In the case at bar, the plaintiff was buying cattle in a district above the quarantine line, where the Texas fever ticks would not reasonably be supposed to exist, and a reasonable and prudent man would not be supposed to examine for them (Croff v. Cresse, 7 Okla. 414, 54 P. 558), and, when he (the plaintiff in error) went to buy cattle in such a district for the purpose of shipping them to the northern market, if the defendant in error S. T. Hornbeck, knowing that cattle infected with the Texas fever ticks would not be marketable in such market, stood silently by and sold such cattle to the plaintiff in error with knowledge of such infection, he would be liable for proper damages. By instruction 8, supra, the court appears to have so instructed the jury. The testimony is undisputed that S. T. Hornbeck knew the purpose for which the cattle were brought, and the jury necessarily found in this case that said Hornbeck had no knowledge that the cattle were so infected, and therefore, having no such knowledge, he was not liable under any theory. Croff v. Cresse, supra; Railway Co. v. Finley,38 Kan. 550, 16 P. 951; Patee v. Adams, 37 Kan. 133, 14 P. 505; Lynch v. Grayson, 5 N.M. 487, 25 P. 992; Id.,163 U.S. 468, 16 Sup. Ct. 1064, 41 L. Ed. 230.
There are various assignments of error relative to the admission of testimony; but this evidence, except in instances where it is purely hearsay, or the questions are leading, was offered as to the measure of damages; and there being no liability found by the jury, if there was error as to the admission of testimony, there having been no damages found whatever, it would be error without injury. *Page 294
We think the instructions of the nisi prius court properly submitted the issues to the jury as to the liability and were sufficiently favorable to plaintiff in error; and, the jury having found against the plaintiff in error on that point, if any evidence was excluded as to the measure of damages under the finding of the jury as to the facts, it would be error without injury.
The vice of instruction 4p., requested by the plaintiff in error, is that it eliminates the question as to knowledge on the part of the defendants in error as to the infected condition of the cattle, and for that reason should have been refused. Instruction 5p., requested by the plaintiff in error, was susceptible of the construction that the plaintiff was entitled to recover damages for mental annoyance, and on that score it was properly refused; there being neither any allegation nor proof tending to support such damages. Instruction 6, given by the court, appears to have properly submitted the question of damages, and for that reason, if for no other, there was no error in refusing instruction 5p. Instruction 6p., requested by the plaintiff in error, is fairly covered by instruction 8, given by the court. The jury having found that there was no liability whatever on the part of the defendants, the refusal of instruction 7p. was without error, because, if the plaintiff was not entitled to nominal and actual damages, the failure to submit the question of exemplary damages, even though plaintiff in error was entitled to such submission, would be error without injury.
The evidence failed to sustain any liability against the wife of the defendant.
Upon the whole record, we find no reversible error, and the judgment of the lower court is, accordingly, affirmed.
All the Justices concur. *Page 295