Huber Mfg. Co. v. Piersall

• Citation: 150 Ky. 307,150 S.W. 341
• Parties: HUBER MFG. CO. v. PIERSALL. [d]
• Decision Date: 30 October 1912
• Court: Court of Appeals of Kentucky

150 S.W. 341

150 Ky. 307

HUBER MFG. CO. v. PIERSALL. ^[d]

Court of Appeals of Kentucky.

October 30, 1912

Appeal from Circuit Court, Fayette County.

Action by Nina A. Piersall against the Huber Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

George C. Webb, of Lexington, for appellant.

Forman & Forman, of Lexington, for appellee.

WINN J.

On the afternoon of Sunday, July 1, 1906, J. M. Piersall, as the agent for his wife, Nina Piersall, the appellee, bought of the general agent of the Huber Manufacturing Company, at Lexington, Ky. an 18 horse power traction thresher engine. He took it that night to the farm of one Tanner, in Fayette county, where he endeavored to thresh with it on Monday. Finding it unsatisfactory, he returned it to the Huber Manufacturing Company agency on Tuesday morning. When he bought the engine, he had with him a blank check signed by his wife. This was filled out for $650, and given to the agent. On Monday morning Mrs. Piersall came to town and executed her note for $645. This action was brought to recover the $650 cash payment and to cancel the $645 note. Pending the litigation the Huber Manufacturing Company presented this note at the bank where it was made payable whereupon it was paid and charged to Mrs. Piersall's account. She then amended her petition, asking the recovery of this sum also. The trial court gave her the relief desired, and the Huber Manufacturing Company appeals here.

The facts are in sharp conflict. The plaintiff's case is as follows: J. M. Piersall says that he bought for his wife the engine on the Sunday afternoon; that nothing whatever was said about any written order or contract, and that none was prepared; that it was agreed that the engine would do good work, and that, if it did not, the engine should not be the property of the purchaser; that it was agreed that his wife was to execute her note for the deferred payment and a mortgage on the engine to secure this note; that he was to bring his wife in at some early and convenient day to execute these papers; that with experienced engineers he took the engine to the Tanner place, made every effort to use it, and that it would not do the work required of it; that about 10 o'clock on Monday morning he sent Chelsea Piersall, his brother, to telephone to Walker of the conditions. Chelsea Piersall testifies that he telephoned to Walker about ten in the morning; that he recognized Walker's voice; and that Walker said he would be down in a few minutes. Mrs. Piersall testifies that early on Monday morning she received a telephone message from the agent, Walker, asking her to come in to his office and execute the papers; that, when she arrived there, the papers were not prepared and she waited for their preparation; that while waiting Walker was called to the telephone, when she heard him say that he would be down there in a few minutes, the same answer that Chelsea Piersall testifies he received from Walker at about that hour; that, after this telephone conversation, Walker read over to her a written contract order, and that she executed it, the note, and the mortgage; that meantime she had not seen her husband or had any communication with or from him.

Mr Tanner, the farmer, and sundry of the engineers and laborers employed by Piersall, who were along with the engine, testify that it was wholly defective, and would not at all do the work. It was returned on Tuesday morning, and by agreement was stored in the Huber warerooms without prejudice to the rights of either party. Piersall's testimony that nothing was said about a written contract is supported by some of these men who were present when the trade was made on Sunday afternoon.

On the defendant's side Walker testifies that he told Piersall that there would have to be an order given for the engine that he, Walker, secured an order blank, filled it up, and pushed it over toward Piersall, asking him to sign it; that Piersall said no, that his wife would have to do that; that he asked Piersall whether his wife would come in the next morning and sign the papers, or whether a man should be sent out to her house with them; that Piersall said that there was a telephone in her house and that Walker could call her up that he, Walker, called her up by phone, told her of the sale, and asked her whether he should deliver the engine, and she replied in the affirmative; that he told her that the papers, order, note, and mortgage would have to be signed, and asked her whether she would come in the next morning, or whether he should send a man out; that she responded that she would be in the next morning; that he left the printed order filled in lying on the table; that the next morning Mrs. Piersall came in, and that, when the witness went into the office, he found her looking over the printed order contract; that he had the mortgage and note prepared, whereupon Mrs. Piersall executed the written order, the note, and the...