Cox v. Pithoud

SCHOTTKY, J.

Plaintiff George Cox commenced an action against defendant James Pithoud to recover the sum of $1,064 for loss of and injury to cattle which had been delivered to defendant for pasturing. The defendant filed an answer and cross-complaint denying any liability or neglect on his part and also praying for $45 balance due on pasturage.

The court found in favor of plaintiff and judgment was entered awarding plaintiff the sum of $375 on his complaint, and awarding defendant judgment in the sum of $30 on his cross-complaint. Defendant’s motion for a new trial was

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denied, and he has appealed from the judgment.

It appears from the record that in July 1959, George Cox and James Pithoud entered into an oral agreement whereby Cox agreed to place 10 calves on irrigated pasture owned by Pithoud for a fee of $3.00 per head per month. Cox testified that Pithoud agreed to feed, water and maintain the calves. Pithoud said they would have sufficient feed. Cox testified that the calves were in good condition at the time they were delivered but that in October when he reclaimed the remaining calves they were in poor condition. There was no feed in the pasture. (Two calves had died before they were reclaimed —two afterward.) Cox said the cattle did not seem to be diseased in any way. In his opinion, they were starved. The testimony of Cox was corroborated by the testimony of Elgin Hopkins who testified that Pithoud agreed to transfer the calves from one pasture to the other and see that they had water. Hopkins asserted that the calves were in good condition when delivered and in very bad condition when reclaimed. In his opinion, they were not diseased but were starved—there was no grass in the pasture. Hopkins also testified that it was Pithoud’s responsibility to transfer the calves from pasture to pasture because it was irrigated pasture.

The testimony on behalf of appellant Pithoud was, as often occurs, contrary to that of respondent. The gist of such testimony was that the calves were in very poor condition when they were brought in; that they looked wormy. Pithoud offered evidence that plenty of feed was available and that the cattle were rotated from pasture to pasture. The inference to be drawn from this testimony is that the calves were diseased and unhealthy when placed in pasture and that the loss was not the fault of Pithoud.