Dreyer-Whitehead & Goedecke, Inc. v. Land

• Decision Date: 15 October 1948
• Citation: 216 S.W.2d 413,309 Ky. 113
• Parties: DREYER-WHITEHEAD & GOEDECKE, Inc. et al. v. LAND et ux.
• Court: Kentucky Court of Appeals

216 S.W.2d 413

309 Ky. 113

DREYER-WHITEHEAD & GOEDECKE, Inc. et al. v. LAND et ux.

Court of Appeals of Kentucky

October 15, 1948

Rehearing Denied Jan. 28, 1949.

Appeal from Circuit Court, Madison County; William J. Baxter, Judge.

Action in equity by Dreyer-Whitehead & Goedecke, Inc. and another against Burdette Land and his wife Peachie Mae Land to recover the purchase price of a bulldozer and complementary equipment, to foreclose a mortgage and to set aside a conveyance made by the defendant to his wife. Defendant counterclaimed. The chancellor denied recovery for the price of the bulldozer, refused to set aside the conveyance and dismissed the counterclaim, and plaintiff appeals and defendant cross-appeals.

Judgment reversed on original appeal and affirmed on cross appeal with directions to enter judgment for plaintiff consistent with opinion.

John Noland, of Richmond, for appellants.

Thomas D. Shumate, of Richmond, for appellees.

CLAY Commissioner.

This action was brought in equity by appellants to recover the purchase price of a second hand Diesel bulldozer and other equipment, to foreclose a mortgage on this machinery, and to set aside a conveyance made by the principal defendant (hereinafter referred to as 'appellee') to his wife. Appellee counterclaimed for damages based on alleged expenditures for repairs to the machinery. The Chancellor denied appellants recovery for the purchase price of the bulldozer, refused to set aside the conveyance, and dismissed appellee's counterclaim. Both parties appeal from so much of the judgment as is adverse to them.

On March 19, 1947 appellants sold to one Roy Long (not a party to this action) a second hand Caterpillar Diesel bulldozer for the sum of $3,500. A written contract was executed which stipulated, among other things: 'Bulldozer is sold 'as is' and 'whereis' with no guarantee or warrantee implied, spoken or written of any kind' * * *

The note executed for this purchase was payable in ten days, but was not paid. On April 18 Long executed a chattel mortgage to secure the payment of the purchase price, which described the bulldozer and stated, 'being the same property heretofore sold'. Shortly thereafter he purchased from appellants for $250 some complementary equipment. Long never made any payments for this bulldozer or the additional equipment although he used it from and after the date of purchase.

On May 23, 1947 Mr. Goedecke, President of the corporate appellant met appellee who had become a partner of Long in the construction and excavation business. After negotiation, appellee agreed to purchase the machinery individually and to assume the indebtedness of Long. This transaction was consummated by the execution of a written contract between appellants and appellee. This contract recited, among other things: (our italics) 'That for and in consideration of the agreements and assignments made herein, and the assumption by the first party of a certain contract for the sale of certain machinery which is set out and described in a mortgage * * * dated the 18th day of April 1947,' * * * the machinery 'is this day turned over' to appellee who 'hereby agrees to keep up and pay the said indebtedness as set out in the mortgage, and will pay same according to the contract entered into' * * *

This agreement was not only signed by appellee and appellant, but also by Long.

Thereafter the bulldozer was used by appellee in excavation work, and it was operated at various times by the original purchaser Long, as appellee's partner...