Citizens Ice & Fuel Co. v. Fairbanks, Morse & Co.
| Decision Date | 02 February 1943 |
| Citation | 168 S.W.2d 586,293 Ky. 64 |
| Parties | CITIZENS ICE & FUEL CO. v. FAIRBANKS, MORSE & CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Barren County; L. B. Handley, Judge.
Action by Citizens Ice & Fuel Company against Fairbanks, Morse & Company on an implied warranty in the sale of engine used in manufacturing ice. From a judgment sustaining motion to require plaintiff to make petition more definite, certain and specific, the plaintiff appeals.
Affirmed.
E. H Smith and C. B. Latimer, both of Glasgow, for appellant.
Bullitt & Middleton, of Louisville, Richardson & Redford, of Glasgow and Poppenhusen, Johnston, Thompson & Raymond, of Chicago Ill., for appellee.
The Citizens Ice & Fuel Company, of Glasgow, is challenging the correctness of the ruling of the trial court in sustaining the motion of Fairbanks, Morse & Company to require the Ice Company to make its petition more definite, certain and specific, by showing whether the purchase arrangement between the parties referred to in the petition was oral or in writing, and, if it was in writing, to file a copy. The petition was framed with the view of basing the cause of action on an implied warranty arising out of "a state of facts," and was not intended to be based on a contract either oral or written. In substance it charged that the Ice Company bought an engine from Fairbanks, Morse & Company to be used in manufacturing ice; that the seller knew the purpose for which the engine was to be used; that it had superior knowledge concerning the engine which it manufactured and sold; that the buyer relied upon the superior knowledge and judgment of the seller as to the kind, nature and capacity of the engine; and that the engine would not perform the work for which it was purchased.
It is apparent at once that there was some type of contract or agreement between the parties relating to the purchase of the engine; otherwise, there would be no basis whatever for an action on an implied warranty. The appellee contends that its motion was proper under section 134 of the Civil Code of Practice, which provides, among other things, that: "*** And, if the allegations of a pleading be so indefinite or uncertain that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. ***"
We believe this position to be sound. Since there was some...
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