Harrigan v. Advance Thresher Co.

• Decision Date: 07 June 1904
• Citation: 81 S.W. 261
• Parties: HARRIGAN et al. v. ADVANCE THRESHER CO.
• Court: Kentucky Court of Appeals

81 S.W. 261

HARRIGAN et al. v. ADVANCE THRESHER CO.

Court of Appeals of Kentucky.

June 7, 1904

Appeal from Circuit Court, Simpson County.

"Not to be officially reported."

Action by the Advance Thresher Company against H. W. Harrigan and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

G. W Whiteside, for appellants.

Jno. J Nuniken, for appellee.

NUNN J.

This action was instituted by appellee against the appellants on a note for $300, executed for the purchase price of one "Star" engine, purchased by appellants from West Bros., the note having been executed direct to appellee at the request of West Bros. The appellants answered the petition of the plaintiff, and alleged that at the time and before they made the trade with West Bros. for the engine West Bros. warranted the engine to be in good condition, and all right, and that it would do the work of any 12 horse power engine; that in buying this engine they relied upon these statements and warranty in making the trade; that they had no opportunity to test the engine as to its condition or power prior to the trade, and that, but for these statements and warranty, they would not have bought the engine; that they executed the note sued on to the appellee before they had received possession of the engine, with the positive representation and statement of West Bros. that the engine was in the condition and of the character as represented by them, which was made in the presence of one Boyd, the general agent of the appellee, who approved their statements, and agreed that appellee would make good the representations and warranty of West Bros.; that in a few days after the execution of the note they received this engine, and undertook to operate it, and they found that it was not "all right," that it was not in "good condition," that it "would not do the work of any good twelve horse power engine," and that in fact it was of no value; that they bought it for the purpose of running a thresher and corn shredder, which was at the time known to West Bros. and appellee; and that it was not in the condition, nor did it have the power, to run either the thresher or shredder, and it was not fit for any purpose; and that they had been damaged in the way of repairs and other expenses in attempting to run it in the sum of $160. They asked that their note be canceled, and tendered the appellee the engine, and asked judgment for $160. The parties pleaded to an issue, the case was tried in equity, and the court adjudged that appellants pay the note, with interest, from which judgment they have appealed.

It appears from the proof that the engine was in very bad condition at the time appellants purchased it; that it would not do the work and did not have the power of any good 12 horse power engine, nor half that power, and was worthless for the purpose for which they purchased it. It also appears that Tom West, of the firm of West Bros., and the person who sold the engine to appellants, represented at the time and before the trade to appellants...