Hall Mfg. Co. v. Purcell

• Decision Date: 25 May 1923
• Citation: 251 S.W. 177,199 Ky. 375
• Parties: HALL MFG. CO. v. PURCELL ET AL.
• Court: Kentucky Court of Appeals

251 S.W. 177

199 Ky. 375

HALL MFG. CO. v. PURCELL ET AL.

Court of Appeals of Kentucky.

May 25, 1923

Appeal from Circuit Court, Hardin County.

Action by Charles Purcell and others against the Hall Manufacturing Company. Judgment for plaintiffs, and defendant appeals. Reversed, with directions to grant a new trial.

H. L James, of Elizabethtown, for appellant.

L. A Faurest, of Elizabethtown, for appellee.

TURNER C.

This is an action for damages by appellees, plaintiffs below, against appellant, an Iowa corporation, wherein damages are sought because of an alleged breach of warranty made by defendant to plaintiffs of a certain piece of machinery alleged to have been sold to them by it.

The answer denied the sale by appellant to appellees and denied the making of any warranty whatever.

On the trial it appeared appellant is an Iowa corporation and the manufacturer of what is known as the "Jenney Silo-Filler Husker," a piece of machinery designed to expedite the filling of silos. It further showed W. H. McMurtry was a dealer in machinery at Elizabethtown, and bought the machine sold appellees from appellant, and sold the same to appellees; that he was not the agent of appellant, and the transaction was wholly one between him as a dealer and the appellees as purchasers.

Thereupon during the trial the plaintiffs tendered an amended petition wherein it was alleged in substance that the Hall Manufacturing Company at the time of the sale in question and prior thereto was engaged in manufacturing Jenney silo-filler huskers of the kind purchased by plaintiffs and was selling same to and through dealers, and contracted with W. H. McMurtry to sell machines of that kind to him as a dealer for the purpose of being sold by McMurtry to other parties, and that the defendant warranted said machines as follows:

"The Hall Manufacturing Company guarantees the machinery for one year against defective material and workmanship, and that it will perform the work as described in their literature, and that any defective material will be replaced promptly, free of charge, by it, upon receipt of notice and description of the defective parts."

And that defendant expressly agreed with McMurtry that said warranty should extend to and be for the benefit of the parties who might purchase said machines from or through said McMurtry, and that defendant theretofore authorized McMurtry to make said warranty for and on its behalf with the persons who should purchase said machines from McMurtry. They then allege that McMurtry represented to them that said warrant was the warranty of defendant.

This amended petition was filed over the objection of defendant whereupon defendant entered a motion to set aside the swearing of the jury and continue the action, which motion was overruled. On consideration of this motion the attorney for the defendant filed his affidavit stating that the case had been prepared by him on the idea that a sale was claimed to have been made direct to plaintiff by the defendant, and that until the filing of the amendment he had no information that plaint...