Case v. Swetz

The proposition of law advanced by the plaintiff is undoubtedly correct but the Court cannot find that there was actually a sale until delivery. However, this question becomes immaterial in view of the Court’s belief *63that the cow was actually infected with hemorrhagic septicemia before she left the plaintiff’s premises. The lack of appetite and trembling are symptoms of this disease and both of these were already apparent when the cow was delivered to the defendant, indicating that the disease had made considerable progress.

In view of the representation on the part of the plaintiff that the cow was in good health, the defendant is entitled to reduce the amount of the note by the price paid by him for the diseased cow.

According to defendant’s evidence he paid $470. for four cows or $117.50 for each cow. He also paid $10 to a veterinarian for treating the cow. This total of $127.50 should be credited on the note for $135., leaving a balance due the plaintiff of $7.50., for which amount judgment may be entered together with costs.

The Court has granted permission to the defendant to file an amended answer and counter-claim to conform to the evidence presented by him. When presented by defendant’s counsel the answer may be filed.