all he could get out of them, as matters had been "arranged" or "fixed," taken in connection with other matters referred to, furnished sufficient evidence to entitle the plaintiff to go to the jury. It was incumbent on the garnishee to explain the matters, if it was in his power, and to show that his conduct was consistent with fair dealing.

The plaintiff at the trial offered to introduce the application of defendant to the United States court, which offer recited that he had applied for a discharge in bankruptcy, to restrain further action on the garnishment proceeding until after his discharge in bankruptcy. The court rejected the offer. This was error. After the showing that plaintiff had made that there was a conspiracy between defendant and garnishee to defraud the creditors of the former, the tender was admissible. Hart v. Hicks, 129 Mo. 99, 31 S. W. 351; State v. Walker, 98 Mo. 95, 9 S. W. 646, 11 S. W. 1133; Williams v. Casebeer, 53 Mo. App. 644.

It is not apparent to us that the deed to certain real estate from defendant to Spencer had any bearing on the case, and it was properly rejected as evidence.

The cause is reversed and remanded. All concur.

NARR v. NORMAN.

(Kansas City Court of Appeals. Missouri. June 5, 1905.)

1. SALES-WARRANTY-ACTION FOR BREACHPLEADING IN JUSTICE'S COURT.

A statement in justice's court alleging that defendant guarantied that certain hogs which he sold to plaintiff were healthy and in good condition, well knowing that they were sick, sufficiently pleads a contract of warranty.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 1241.]

2. SAME-WARRANTY-CAVEAT EMPTOR.

Where a seller expressly warrants the soundness of animals, and the buyer, not aware of their real condition, relies, after a reasonable examination, upon the assurance made by the seller, the rule of caveat emptor is without application.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, §§ 84, 401.]

3. SAME-DAMAGES-EVIDENCE.

Evidence that hogs warranted as healthy and in good condition were sick does not, when taken with further evidence that they fully recovered, afford a basis for damages for the breach of warranty.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, § 803.]

dition warranted, although its value as warranted exceeded the contract price; but, in case the vendee paid more for the article than its reasonable market value, his recovery is controlled by the purchase price, rather than by the market value.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1284-1286.]

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action by William Narr against Albert Norman. From a judgment for plaintiff rendered on appeal from a justice, defendant appeals. Reversed.

Loomis & Hudson and L. A. Chapman, for appellant. Frank S. & Scott J. Miller, for respondent.

JOHNSON, J. This action originated before a justice of the peace. A trial in the circuit court resulted in a judgment for plaintiff in the sum of $73.89. Defendant sold and delivered to plaintiff ten head of hogs at the price of $82.15, which plaintiff paid. The evidence shows that at the time of sale the animals were infected and sick with cholera from which, shortly after delivery, eight of them died. The remaining two recovered.

In the statement upon which the case was tried, plaintiff charged that defendant at the time of sale "guarantied that said hogs were healthy and in good condition, well knowing that they were sick," etc. We do not agree with defendant that the pleading of the contract of warranty is insufficient. It is definite enough to advise the opposite party of plaintiff's purpose to make an express warranty an issue in the case. This is all that is required of a pleading in a justice of the peace court.

Substantial evidence was introduced tending to show that defendant expressly warranted the soundness of the hogs, and that plaintiff, not aware of their real condition, after a reasonable examination, relied upon the assurances made. Under such circumstances, the rule of caveat emptor is without application. Galbreath v. Carnes, 91 Mo. App. 512.

But the case must be reversed and remanded because of failure of proof relative to the value of the eight hogs that died. The only evidence touching the subject appears in the following portion of plaintiff's testimony: "Q. What did you pay for these hogs? A. $82.15. Q. Did you buy them by the head? A. No, sir; by the hundred pounds. Q. Did they all die? A. All but two. Q. What became of these two? A. I have got them. Q. What is their condition? A. They are healthy, I think. Q. And all right? A. Yes, sir; as good as any hogs I ever had. Were they ever sick? A. Yes, sir. Q. How long were they sick? A. One only a little while, and I thought I would lose the other." The fact of the sickness of the two hogs that survived, in the absence of other evidence, does not furnish any basis upon which to estimate the amount of damage caused thereby ;

Q.

nor does it, in view of the admission that the animals fully recovered, even support an £ference that any damage resulted. It was error to permit a recovery on account of these two hogs. As to the other eight, it appears from the testimony quoted that they were bought by the pound, and, as their weight is not disclosed, the fact alone that $215 was paid for the whole ten is not enough from which to ascertain the purchase price of the eight. The presumption cannot be indulged that the ten hogs all weighed the same. No other evidence relating to their value appears in the record, and there was nothing to submit to the jury upon the issue of substantial damages. The basic principle controlling the measure of damages in such cases is full compensation for the actual loss sustained by the injured vendee. Chandelor r. Lopus, Smith's Lead. Cases, vol. 1, pt. 1, p. 355: Reggio v. Braggiotti, 7 Cush. (Mass.) 269. Hence the rule generally followed of permitting a recovery for the difference, between the actual value of the article sold and its value in the condition warranted. Brown . Weldon, 99 Mo. 564, 13 S. W. 342. The purpose of the rule is to give the vendee the benefit of his bargain, as a part of his actual loss, should it appear that the market value of the article, as warranted at the time and place of delivery, exceeded the contract price. Sutherland on Damages, § 670. But it is not true, as urged by defendant, that, in the event it is shown that the vendee paid more for the article than its reasonable market value, his recovery is controlled by the latter amount, and not by the purchase price. In no event is the vendor to be suffered to profit by his wrong. He must reimburse the vendee for the actual loss sustained. It follows, therefore, that the instruction given on plaintiff's behalf, which permitted the jury to "allow him the difference between the price paid for the hogs and the actual value," would Lave been without prejudice to defendant, Ead the evidence disclosed the amount paid for the eight hogs. We find no error in the record.

The judgment is reversed, and the cause remanded. All concur.

1 SALES-WARRANTY-BREACH-DAMAGES. Where the buyer of a bull disclosed his intention to use the animal for breeding purposes, and the seller represented his suitability for that purpose, intending thereby to induce the sale, and the buyer relied upon the seller's representations and the apparent soundness of the animal, an express warranty of the bull for the purpose for which he was intended could be inferred, although no formal words of wartanty were used by the seller.

Ed Note-For cases in point, see vol. 43, Ceat. Dig. Sales, §§ 729, 731, 732.]

2. CONTRACT-CONSTRUCTION.

Where the terms of a contract, written or verbal, are definitely known, and the inference to be drawn therefrom is certain and indisputable, the interpretation of the contract is for the court, and not for the jury.

[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 767-770.]

3. SALE-WARRANTY.

Where sellers of a bull know that the animal is valuable to the buyer only as a breeder, their positive assurances that he is sound and a good breeder and server cannot be deemed merely commendatory, but must, as matter of law, be taken as words of warranty.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, §§ 731, 732.]

4. SAME-DAMAGES FOR BREACH.

The measure of damages for breach of warranty is the difference between the actual value of the article and its value as warranted, although the purchase price was less than that value.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1284-1286.]

5. SAME.

The buyer of a bull warranted to be sound and serviceable may, in the event of a breach of warranty, recover interest, and expenses incurred in shipping the animal, and for medical treatment employed in endeavoring to restore him to health.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1290, 1293.]

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by Louis L. Young against W. S. Van Natta and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Flournoy & Flournoy, for appellants. Frank H. Woods, Cyrus Crane, and Wm. A. Knotts, for respondent.

JOHNSON, J. Action upon an alleged warranty of a Hereford bull sold by defendants to plaintiff. The petition contained three counts; the causes of action pleaded being founded, respectively, upon express warranty, implied warranty, and false and fraudulent representations. At the trial the last two mentioned causes were voluntarily abandoned, and the cause went to the jury upon the issue of an express warranty. Plaintiff recovered judgment, and defendants appealed.

The contract between the parties involved in the controversy was made in the manner following: Plaintiff, a cattle breeder and raiser doing business in Nebraska, wrote defendants, engaged in like business in Indiana, upon the subject of purchasing a Hereford bull, to be used in breeding. Defendants answered by letter under date of July 17, 1899, offering for sale the animal afterwards purchased, and describing him in this language: "Almont will weigh about 2,400 lbs., is a rich dark red, a very little white on top the neck, pure white face, low down long body, straight top and bottom lines, smooth hips, broad and deep in the twist, good in rear and fore flanks, good head with slightly drooping horns, a long silky curly coat, rather extraordinary back and loin, a very quick

server and sure getter. We have retained this bull and used him extensively in our herd and are still using him. We have a lot of his get. * We have never before offered this bull for sale, but we have a lot of his get and have a half-brother to him. Price, $1,000. Now, if you want a herd bull that is as good as the very best, large and quality from end to end, whose breeding is as good as any contained in the herdbooks, and you can see a lot of his get and judge of their quality for yourself, you have an opportunity that you will seldom get. He is a better bull than either 'Wild Tom' or 'Salisbury.'" Shortly after the receipt of this letter, plaintiff went to defendants' place, in Indiana, to inspect the bull; arriving there in the afternoon of August 9, 1899. On the 11th the sale was consummated at the price fixed in the letter. Plaintiff's inspection before closing the trade was most thorough. In appearance the animal seemed to merit the high praise bestowed upon him, and there was nothing to indicate to the eye of experience the presence of a secret malady, nor that the bull was not a "good server and breeder." Defendants were informed that plaintiff desired the bull for the exclusive use of breeding. Plaintiff testified he told them that he needed a bull to head his herd-to do the main work of serving his cows-and defendants assured him that "this bull is just what you want"; that he is a sure breeder and very active; and that, "when we have a cow hard to get in calf, we always put her to Almont." When asked about his soundness, defendants asserted: "He is all right in every particular. If he was not, we would not sell him to you." Plaintiff said he bought Almont because defendants told him that "he was suitable for me, and the bull I wanted, and needed, and that he would be a good bull for me. I relied solely on what they wrote and told me, except his general appearance.

* I told Mr. Van Natta I didn't 'know anything about this bull, and you have bred him and raised him, and have been with him every day, and know all about him.' *

I told him that I would depend solely upon what he said about the bull." One of the defendants testified: "We were aware that he wanted a bull for the head of his herd. We wanted to sell him. We knew Mr. Young was anxious to get a bull to put at the head of his herd. * * I talked to Mr. Young

about the bull. I told him he was a good breeder and a good server. I told him he was all right in every way, as to being a breeding bull, and as to pedigree and everything. I said he was all right in every way. I told him that he was sound, and was suitable to place at the head of any bunch of Herefords in the country." The other defendant said: "I knew Mr. Young wanted a bull to put at the head of a Hereford herd. I had written Mr. Young full about this bull [the letter above noted]. * * I represented just what I wrote in the letter. I thought this

bull was good enough to head anybody's herd, and I did think so. • 1 told

*

Mr. Young that Almont was a better bull than 'Wild Tom' or 'Salisbury,' and I say it yet. If he hadn't had tuberculosis, I would still say he was a good bull." Plaintiff paid the purchase price, and took the bull to his farm, in Nebraska. On the trip the animal met with some rough treatment in the switching of the car in which he rode, and appeared somewhat used up. After giving him sufficient time to rest, plaintiff endeavored to use him, but found him very slow and unwilling. He was worthless for breeding, steadily declined in health, and died November 8th. A post mortem examination disclosed that his death resulted from tuberculosis of the bowels, and the evidence is convincing that he was infected with this disease at the time of sale to the extent of making him valueless as a breeder.

The intention of defendants to warrant the soundness of the animal for the purpose of inducing the purchase, and the reliance of plaintiff upon the representations made to that end, are sufficient to constitute an express warranty without the use of formal words. Carter v. Black, 46 Mo. 384; Danforth v. Crookshanks, 68 Mo. App. 311; Anthony v. Potts, 63 Mo. App. 517; Ransberger v. Ing, 55 Mo. App., loc. cit. 624; Lindsay v. Davis, 30 Mo. 406. These facts may be inferred from the nature of the representations made, in connection with the circumstances under which the parties dealt. The facts from which an express agreement to warrant should be inferred are the following: Plaintiff disclosed the special use for which he intended the animal. Defendants represented his suitability for that purpose, intending thereby to induce the sale. The animal apparently was sound and in every way as represented. Plaintiff was compelled to, and did, rely upon the representations made with respect to defects not discoverable upon inspection. It was proper to refuse defendants' request for a peremptory instruction.

The claims of error in the action of the trial court in giving instructions Nos. 1 and 2 on behalf of plaintiff appear to be based upon the idea that the court, in effect, assumed as proven the fact of warranty; and it is urged that as the contract, being in parol, essentially rests upon intention, it is a fact the existence of which is always a question for the jury. The instructions, as framed, are free from the criticisms offered, even under defendants' conception of the law, with which we do not agree. The office of the jury is to weigh evidence, and to decide issues of fact about which reasonable minds might differ; but when an essential fact must be deduced from others, and the basic facts are admitted, and the inference to be drawn therefrom certain and indisputable, the jury has no function to perform, there being nothing for it to act upon. Burdick on Sales, § 217; Mechem on Sales, § 1244;

Benjamin on Sales (7th Ed.) vol. 2, p. 665. When the terms of a contract are definitely known, whether it be in writing or verbal, its interpretation is a matter of law for the court, not a question of fact for the jury. All the facts necessary to constitute an express contract to warrant being admitted by defendants, they cannot, by injecting into the case their unexpressed mental reservations, make an issue of fact. Knowing that the bull was valuable to plaintiff only as a breeder, their positive, admitted assurances that he was sound and a good breeder and server cannot be considered as merely commendatory, but must be taken as words of warranty, intended when uttered to be so accepted; and the failure of the animal to meet the requirements of the contract thus estabished, either in point of health or in breeding and serving, raised a cause of action in plaintiff's favor. The court would not have committed error, had it, in the instructions given, treated the agreement to warrant as an admitted fact.

This conclusion disposes of every point made upon this branch of the case.

The court admitted evidence offered by plaintiff fixing the market value of the bull, had it been in the condition as warranted, at a sum exceeding the purchase price paid; and the jury was directed, if they found for plaintiff, "to allow him as damages the difference, if any, between the value of the bull as it would have been, had said bull been of the kind and character as warranted by defendants, or either of them (if you find they did warrant it, as defined in another instrucCon), and its actual value, if any, as shown by the evidence at the time and place of sale." The rule followed is supported by the great weight of authority. Narr v. Norman bot yet officially reported) 88 S. W. 122; Chandelor v. Lapus, 1 Smith's Leading Cases pt. 1. p. 365; Reggio v. Braggiotti, 7 Cush. (Mass.) 169; Brown v. Weldon, 99 Mo., loc. et. 5, 13 S. W. 342; Layson v. Wilson, 37 Mo. App. 636; Sutherland on Damages, 50: Benjamin on Sales (7th Ed.) pt. 2, p. 902. But defendants say the recovery should be limited to the purchase price paid. We do not think so. Plaintiff should be compensated for the actual loss sustained through defendants' wrongful breach of contract. The bargain he made, but failed to realize, a part of his actual loss, for which he aust be reimbursed.

Upon the principle that plaintiff should be bade whole, it also was proper to direct the alowance of interest, and the repayment of expenses incurred in shipping the bull, and for medical treatment employed in an effort to restore the health of the animal. Galbreath 7. Carnes, 91 Mo. App. 515. Interest from the date of demand is treated in cases of this aracter as a part of the actual damage suffered. As observed by one court, "To afferd the party just compensation, since his damages accrued at a definite time, he must

be allowed interest; else the longer the delay, the more inadequate his compensation would prove to be." Harvester Works v. Bonnallie, 29 Minn. 373, 13 N. W. 149; Lachner v. Express Co., 72 Mo. App. 13; Sutherland on Damages, § 671; Plow Works v. Scott & Co., 90 Wis. 590, 63 N. W. 1013; Trimble v. Ry. Co., 180 Mo. 587, 79 S. W. 678; Padley v. Catterlin, 64 Mo. App. 629; Goodman v. Ry. Co., 71 Mo. App. 464. We are of the opinion that plaintiff is entitled to such interest as a matter of right.

No error appears in the record. The judgment is affirmed. All concur.

JAMES v. UNITED STATES CASUALTY

CO.*

(Kansas City Court of Appeals. Missouri. June 5, 1905.)

1. APPEAL THEORY OF TRIAL.

On appeal the parties are bound by the theory they adopted at the trial.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1053-1069.] 2. ACCIDENT INSURANCE-RISKS INSURED.

Where an accident policy described the duties of insured, who was a queensware merchant, as consisting of "office duties and traveling,' and insured against loss of time from injuries, but the parties, on trial of an action on the policy, introduced evidence as to whether plaintiff was disabled from performing any of his duties, the policy should be regarded as insuring against inability to substantially perform the general occupation of queensware merchant, and not merely against inability to perform office duties and traveling. 3. SAME-POLICY DISABILITY.

CONSTRUCTION

TOTAL

A provision in an accident policy that it insured against "total" inability to perform "any part of the duties" of insured, who was a merchant, cannot be construed literally, but means inability to perform any substantial part of the business.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 1310.]

4. SAME-INJURIES RECEIVED WHILE A PASSENGER-EVIDENCE-QUESTION FOR JURY.

In an action on an accident policy providing for double payments if insured was injured while a passenger on a street car, evidence held to justify submission to the jury of the question whether plaintiff was a passenger at the time he was injured.

5. SAME-NOTICE OF INJURY-FORFEITURE. Where an accident policy provided that notice should be given the company within 10 days after the accident, a further provision that no claim should be valid unless the provisions and conditions of the contract were complied with did not work a forfeiture for failure to comply with the provision as to notice.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by J. Crawford James against the United States Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry Lee Jost, for appellant. Ward, Hadley & Neel, for respondent.

*Rehearing denied June 26, 1905.

ELLISON, J. The plaintiff, a wholesale and retail queensware merchant, fell from a street car and suffered injury. He had in force at the time, with defendant company, what is known as an "accident insurance policy," wherein it was stipulated that if he was hurt in certain named ways, which caused certain described disability, he should receive indemnity at the rate of $50 per week during the time he was disabled, not exceeding 104 weeks. He brought this action on the policy, and prevailed in the trial court.

The chief contention between the parties relates to the construction to be given, under the evidence, to the following provisions of the policy:

"In consideration of the agreements and warranties contained in the application for this policy, which application is made a part of this contract of insurance, and the payment of an annual premium of $24, does hereby insure, subject to the provisions hereof, J. Crawford James, of Kansas City, Missouri, by occupation a proprietor, wholesale and retail queensware (office duties and traveling only) classified by the company as No. 1.

"Against loss, as hereinafter provided, caused solely and exclusively by bodily injuries, which are immediately, continuously and wholly disabling, and which are effected by external, violent and accidental means. For loss of time per week, for a term not exceeding one hundred and four consecutive weeks, $25. * By wholly disabled shall be understood that the insured is totally unable to perform any part of the duties pertaining to the occupation stated above."

The evidence disclosed: That plaintiff fell from a moving street car and was severely injured on and about the knee. That he was confined to his bed a small part of the time, and went upon crutches all of the time, for which he claims indemnity. That, excepting a time he was absent from the city, he came to his place of business almost daily, where he signed checks, approved orders for goods, and dictated letters. His absence was while he was on a business trip to New York for the purpose of buying goods. But he could not do many of the principal matters pertaining to the business of a queensware merchant. He could not get about the store, and was compelled to sit in his office in a crippled condition. His wholesale house was a building of five or six stories, and his presence was required in all parts of it. His retail place was several blocks away, and his duties required him at each place every day when at home. When in health he looked after customers, sold goods, saw that they were packed and shipped. He supervised the force of employés, including traveling men who sold goods for the house in several states and territories, and with these he frequently took trips. His efforts at business in New York were hampered by his injury. He could only visit a small number of the many houses

he usually dealt with-perhaps only two. He was compelled to travel about in a cab, and to be accompanied by some one to assist him.

The parties were quite liberal in the breadth and scope each allowed the other at the trial of the cause, and that cuts an important figure in the conclusion we have reached, for the rule prevails uniformly in this state that the parties, on appeal, are bound by the theory, mode, and manner they adopt in the trial court. Hill v. Drug Co., 140 Mo. 433, 41 S. W. 909. It appears that the policy did not insure plaintiff against a disabling of the performance of the general occupation of a proprietor of a wholesale and retail queensware merchant, for it specifically limited the insurance to the office duties and traveling of such occupation. And so the question should have been, under such limited view of the clause in question, "Was plaintiff wholly disabled from performing office duties and traveling?" The evidence shows that he was, perhaps, not so disabled, for he did, practically, much of the office duties he could have performed had he not been injured, and he did a part of the traveling. But defendant allowed the issue to broaden into the field of the plaintiff's general occupation as a wholesale and retail queensware merchant, for, while objection was made to plaintiff showing that he was substantially prevented from attending to his business as a queensware merchant, an examination of the record will show that no effort was made to confine such business to the two branches, viz., office business and traveling. In other words, that point on the policy was not made, and plaintiff was permitted by defendant to state the relation the injury had to his performing the whole business, defendant's counsel joining in such examination; that is, the parties have interpreted the policy as covering, generally, the entire business of a wholesale and retail queensware merchant. And plaintiff, not to be outdone in courtesy and liberality, permitted defendant to inquire into plaintiff's various other occupations, such as member of the school board, director of other business corporations, etc., with a view of ascertaining if he was wholly disabled from performing the duties devolving upon him in those parts of his business. One might be very well able to perform the duties of a director in a school or gas company, and yet be wholly unable to travel or conduct the office of a queensware merchant. So we take the case as we find it, and must therefore determine whether the trial court would have been justified, under the evidence, in declaring, as a matter of law, that plaintiff was not wholly disabled from performing the general occupation of a wholesale and retail queensware merchant. If, as appears from a case cited further on, a physician was insured for that occupation, he might receive an injury which would wholly disable him, physically, from going about to visit patients, yet leave him able to dictate prescriptions from a sick