Gardner v. T.J. Winter & Co.
| Court | Court of Appeals of Kentucky |
| Writing for the Court | BURNAM, C.J. |
| Citation | 117 Ky. 382,78 S.W. 143 |
| Decision Date | 20 January 1904 |
| Parties | GARDNER v. T. J. WINTER & CO. |
78 S.W. 143
117 Ky. 382
GARDNER
v.
T. J. WINTER & CO.
Court of Appeals of Kentucky.
January 20, 1904
Appeal from Circuit Court, Mason County.
"To be officially reported."
Action by J. D. Gardner against T. J. Winter & Co. From a judgment for defendants, plaintiff appeals. Affirmed.
A. D. Cole, for appellant.
Clarence L. Sallee and C. D. Newell, for appellees.
BURNAM, C.J.
The appellant, J. D. Gardner, brought this action against the appellees, T. J. Winter & Co., for a breach of warranty and deceit in the sale of 18 bushels of Western German millet seed. In the first paragraph of his petition he relies upon a warranty by the defendants that the seed sold to him was Western German millet seed, suitable for seed purposes; and alleges that the seed was not of the quality warranted, and that, in consequence thereof, his crop grown therefrom was worthless, entailing upon him a loss of $600. In the second paragraph he alleges that the defendants fraudulently represented that the seed was of the best quality of Western German millet seed, suitable for seed purposes, when in fact it was not Western German millet seed, or suitable for sowing, and that the defendants knew it was not--alleging special damages as in the first paragraph. The defendants, in their answer, admit that they sold to the plaintiff 18 bushels of Western German millet seed, but deny the alleged warranty and deceit. The trial resulted in a verdict and judgment for the defendants. The plaintiff proved by a number of witnesses that his crop was almost an entire failure, and that this was not due to any defect in the preparation of the ground to receive the seed, or in its subsequent cultivation. He testified that he had had large experience in the growth and cultivation of Western German millet seed, and that he had uniformly previous to this time had good success with it; that when he purchased the seed from defendants he asked for Western German millet; that the defendants showed him two different kinds of millet seed, due known as "Southern German Millet," and the other as "Western German Millet," and advised him to purchase Southern millet, which was higher in price, but that, relying upon his previous experience with Western German millet, he decided to buy that seed; that the defendants, not having enough of this seed on hand, ordered from a wholesale seed house in Cincinnati, and had it delivered to him in the packages in which [78 S.W. 144] it was put up by the firm in Cincinnati. The testimony of the defendants was to the effect that there were two qualities of German millet seed--one grown in the South, which was raised almost entirely for seed purposes; that this seed was cultivated in hills...
To continue reading
Request your trial
-
Investors' Mortgage Security Co. v. Strauss & Co., Inc., 5618
...v. Southwest Warehouse Co., 158 Cal. 54, 109 P. 839; Gubner v. Vick, 42 Hun, 657, 6 N.Y.S. 4, 25 N.Y. Week. Dig. 356; Gardner v. Winter, 117 Ky. 382, 78 S.W. 143, 63 L. R. A. 647.) By the great weight of authority, the sale of seed as of a certain kind--in other words, a sale by description......
-
Grisinger v. Hubbard
...designated, and there is no warranty that the seed will germinate or is fit for the intended purpose." (35 Cyc. 409; Gardner v. Winter, 117 Ky. 382, 78 S.W. 143, 25 Ky. L. Rep. 1472, 63 L. R. A. 647.) STEWART, C. J. Ailshie and Sullivan, JJ., concur. OPINION [122 P. 854] [21 Idaho 472] STEW......
-
National Seed Co. v. Leavell
...and that verdict is fully sustained by the evidence. Other cases upholding liability in sales of this kind are Gardner v. Winter & Co., 117 Ky. 382, 78 S.W. 143, 25 Ky. Law Rep. 1472, 63 L. R. A. 647, and Yandell v. Anderson & Spilman, 163 Ky. 702, 174 S.W. 481. It is insisted, however, tha......
-
Reynolds v. General Elec. Co., 2,261-- 2,264.
...49 Vt. 45, 47, 24 Am.Rep. 102; American Forcite Powder Mfg. Co. v. Brady, 4 A.D. 95, 97, 38 N.Y.Supp. 545; Gardner v. Winter (Ky.) 78 S.W. 143, 63 L.R.A. 647, 649. Again, the parties to this sale put their contract in writing, and embodied in their writing an express warranty of one of the ......
-
Investors' Mortgage Security Co. v. Strauss & Co., Inc., 5618
...v. Southwest Warehouse Co., 158 Cal. 54, 109 P. 839; Gubner v. Vick, 42 Hun, 657, 6 N.Y.S. 4, 25 N.Y. Week. Dig. 356; Gardner v. Winter, 117 Ky. 382, 78 S.W. 143, 63 L. R. A. 647.) By the great weight of authority, the sale of seed as of a certain kind--in other words, a sale by description......
-
Grisinger v. Hubbard
...designated, and there is no warranty that the seed will germinate or is fit for the intended purpose." (35 Cyc. 409; Gardner v. Winter, 117 Ky. 382, 78 S.W. 143, 25 Ky. L. Rep. 1472, 63 L. R. A. 647.) STEWART, C. J. Ailshie and Sullivan, JJ., concur. OPINION [122 P. 854] [21 Idaho 472] STEW......
-
Reynolds v. General Elec. Co., 2,261-- 2,264.
...49 Vt. 45, 47, 24 Am.Rep. 102; American Forcite Powder Mfg. Co. v. Brady, 4 A.D. 95, 97, 38 N.Y.Supp. 545; Gardner v. Winter (Ky.) 78 S.W. 143, 63 L.R.A. 647, 649. Again, the parties to this sale put their contract in writing, and embodied in their writing an express warranty of one of the ......
-
National Seed Co. v. Leavell
...and that verdict is fully sustained by the evidence. Other cases upholding liability in sales of this kind are Gardner v. Winter & Co., 117 Ky. 382, 78 S.W. 143, 25 Ky. Law Rep. 1472, 63 L. R. A. 647, and Yandell v. Anderson & Spilman, 163 Ky. 702, 174 S.W. 481. It is insisted, however, tha......