Higgins v. Dean Gas Engine & Foundry Co.

• Decision Date: 22 September 1910
• Citation: 140 Ky. 44
• Court: Kentucky Court of Appeals
• Parties: Higgins v. Dean Gas Engine & Foundry Co.

Page 44

140 Ky. 44

Higgins v. Dean Gas Engine & Foundry Co.

Court of Appeals of Kentucky.

Decided September 22, 1910.

Appeal from Kenton Circuit Court (C. C. L. & E. Division).

B. F. GRAZIANI for appellant.

ROBT. C. SIMMONS for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Affirming.

The Dean Gas Engine and Foundry Company entered into a written contract with C. G. Higgins by which they were to furnish him a certain Fairbanks-Morse engine, with the generator and switchboard to be erected on a suitable foundation on his property in Covington, Kentucky, price $525.00 net. They were also to furnish gasoline attachment, piping and foundation, but he was to get the place ready and furnish certain brick and sand; $100.00 was to be paid cash on delivery, and for the balance two notes were to be executed, due in thirty and sixty days. The contract contained the following guaranty:

"We guarantee the complete equipment against defect in material or workmanship for twelve months, and we will replace any defective parts promptly without charge, the above not to include life of batteries, points or ordinary wear of working parts."

The foundation was built and the engine placed upon it. Higgins paid $100.00, but the engine not working to suit him, he refused to execute the notes for the deferred payments, and this suit was brought against him by the company to recover the balance of the price of the engine. He refused upon the ground that the plaintiff had failed to equip or complete the engine with proper material or workmanship or to put upon it an air mixer, which was necessary for its operation; that the engine as put up was useless and could not be used by him for the purposes intended. He made his answer a counterclaim, praying judgment over for the $100.00 he had paid, and certain expenses he had incurred. The case was set down for trial before a jury; the evidence was heard, and the jury returned a verdict against Higgins for the amount sued for. The court entered judgment on the verdict and Higgins appeals.

Some complaint is made as to the rulings of the court in the admission and rejection of evidence; but we can not see that the defendant was in any wise prejudiced by the rulings of the court. In fact, the court ruled in his favor on practically all the questions arising during the trial. The defendant was permitted when on the stand as a witness to state that he refused to give the notes and why he refused to give them. It would seem that the court's ruling on an...