Williams v. Frazier , 41 How. Pr. 428 ( 1870 )

By the court, Johnson, J.

Assuming that the contract had been broken by the defendant, as alleged, “ in not returning the sheep in as good condition as when let,” which seems quite doubtful upon the evidence ; still the judgment cannot be sustained. The contract between the parties was in writing, and by it the sheep were to be returned on the first day of December. They were returned on that day, and the plaintiff after examining them, accepted them as a fulfilment of the contract, and surrendered the contract to the defendant. The contract had been kept by the plaintiff, and he gave it up to the defendant on the return of the sheep as satisfied. ' The plaintiff claims that when the sheep were returned, the defendant represented to him that no ram had had access to the ewes, when in fact they were in an advanced state of pregnancy, and that had he known their true situation in that regard, he would not have accepted them when returned, and surrendered the contract. The defect in the condition of the sheep, on account of which damages are claimed, is that they were so far advanced in pregnancy, that they brought forth their lambs in February and March, which is an improper season, and that in consequence of the lambs coming so early, they could not be raised, but all died. The proper season is shown to be the last of April and the months of May and Jnne. The plaintiff claimed, and by the testimony of himself and his son, sought to prove that the ewes were each worth $2 75 less than they would have been had they not dropped their lambs at this improper season. This depreciation in value was founded solely, as appears from their testimony, upon their estimate of the value of lambs in August and September afterwards, as sold to the butchers.

This evidence was objected to by the defendant when given, and he moved to strike it out after it was given, as an improper measure and basis of damages, but his objection and motion were overruled by the justice. This evidence was clearly incompetent on the subject of damages. It furnished no foundation for estimating damages, on account of the breach which was claimed. It assumes that the ewes were by the contract, to be returned in a condition to bring forth lambs at the proper season, and that the lambs when thus brought forth would all have lived, and in August and September thereafter have been in a fit condition for the butcher, and of the value of $2 75, which the plaintiff had sold his lambs for, that season. This is altogether too remote, fanciful and speculative to form a standard for estimating damages. It involves too many contingencies, and does not touch the diminished values of the animals themselves, but only the increased values of their progeny. The true criterion, if there was a breach, was what the animals were worth less at the time for sale in the market, with their true condition known to the purchaser. There was no evidence on that subject, except it was shown by the plaintiffs son, that ewes which dropped their Iambs thus early were worth more the succeeding Fall to sell to the butcher than those which dropped their lambs as late as May and June. This wag also evidence tending to show that lambs dropped thus early were worth more, if raised in August and September, than if dropped in May or J une.

But the plaintiff gave no evidence to show what condition the sheep were in as to pregnancy, when let to the defendant, whether they were pregnant at all, or whether they were in a condition tó bring forth their lambs in February pr March, or in May .or June. Consequently, there was nothing on his .part to .show affirmatively that the sheep were when returned, in a.condition different from the condition .they were in when let to the defendant. The defendant, on the contrary, testified, and produced other witnesses to prove, that the sheep when he took them df the plaintiff, were in the same condition, in that regard, as those he;returned, .and began to drop their lambs in January, and dropped them in February and March. This was uncontradicted by the plaintiff. The .contract was that the sheep were to be returned in the same condition as when let.

They were taken to be returned in two years, and if they were returned in the .same unfavorable condition as to pregnancy as when received, the contract has not been brokeri, whatever damages the plaintiff may have sustained by reason of "his "lambs having come too early for their safety and his profit. The contract, therefore, is not shown to have been broken. But if it had been, the testimony in regard to damages was incompetent and improper. The judgment of the county court and of the justice must therefore be reversed.