Wade Sons v. Batesville Hog Co. , 139 Miss. 434 ( 1925 )

^* Headnote. Sales, 35 Cyc., p. 409; On necessity of description of place to be searched and property to be seized in search warrant, see notes in 3 A.L.R. 1518, 1519; 13 A.L.R. 1318, 27 A.L.R. 751, 754; 24 R.C.L., pp. 712-714; 4 R.C.L. Supp., p. 1553; 5 R.C.L. Supp. 1296. The appellees, Batesville Hog Company, sued the appellants, John Wade Sons, for seven hundred one dollars and thirty-five cents as damages for the loss of twenty hogs and the shrinkage or loss in weight of other hogs, due to appellants' negligence in shipping inferior corn and chicken feed instead of tankage, which was fed to the hogs, causing them to die, and others to lose weight from alleged ptomaine poisoning caused by the feedstuff. There was a decree in favor of appellees, hog company, for two hundred and fifty dollars, which was for the loss of the dead hogs due to being fed with the inferior corn. The claim for the loss in weight of the other hogs was disallowed by the chancellor. Wade Sons appeal directly, and the appellees cross-appeal.

The suit was prosecuted upon the theory that the appellants negligently shipped inferior and unsuitable feedstuff to appellees, which, when fed to the hogs, caused the sickness and deaths complained of. The defense was that there was no express warranty of the purity of the food for the animals, and, second, that the animals were not injured by eating the feedstuff, and that therefore no recovery should be had.

We have carefully examined the testimony in the record which was offered to show that the hogs died as a result of eating the corn and chicken feed shipped by appellants to appellees, and we do not think the evidence is sufficiently definite to establish the fact that the death of the hogs, and the loss of weight in the others, was caused by the use of the foodstuff purchased by appellees from appellants.

The testimony in the latter regard is uncertain and indefinite, and there are many undisputed facts and circumstances in the case which affirmatively show that the damage to the hogs did not flow from the use of the stock food in question, and, this being true, it is our opinion the appellees should not have recovered in any amount.

We find further that the proof in this record does not clearly establish that the corn and chicken feed was of such a bad and defective quality as would be poisonous or injurious when fed to animals; and, moreover, it appears there was no express warranty of soundness of the food, and, in the absence of an express warranty, and as implied warranty does not apply to foodstuff for animals, there could be no liability for injuries resulting from the condition of the food, which was fed by the appellees to the animals claimed to have been injured thereby. Dunagin-WhitakerCo. v. Montgomery, 117 Miss. 666, 78 So. 580.

For the reasons given above, the decree of the lower court on direct appeal will be reversed, and judgment entered here for appellants, and on cross-appeal the decree is affirmed.

Affirmed on cross-appeal; reversed and judgment here on directappeal.