L. & J.A. Stewart v. Blue Grass Canning Co.

• Decision Date: 25 March 1909
• Citation: 117 S.W. 401,133 Ky. 118
• Parties: L. & J. A. STEWART v. BLUE GRASS CANNING CO. et al.
• Court: Kentucky Court of Appeals

117 S.W. 401

133 Ky. 118

L. & J. A. STEWART v. BLUE GRASS CANNING CO. et al.

Court of Appeals of Kentucky.

March 25, 1909

Appeal from Circuit Court, Daviess County

"To be officially reported."

Action by the Blue Grass Canning Company and another against L. & J A. Stewart. Judgment for plaintiffs, and defendants appeal. Affirmed.

C. S Walker and J. D. Atchison, for appellants

George W. Jolly, B. D. Ringo, and Little & Slack, for appellees.

CLAY C.

Plaintiff Blue Grass Canning Company instituted this action against defendants, L. & J. A. Stewart, to recover the sum of $789.95 as damages for breach of warranty. The jury returned a verdict in favor of plaintiff for $627.90. The defendants moved for a judgment notwithstanding the verdict, and also filed grounds for a new trial. These motions were all overruled. The court thereupon transferred the case to equity, and rendered judgment for plaintiff for the same sum fixed by the verdict of the jury. From that judgment, L. & J A. Stewart appeal.

The Blue Grass Canning Company was a corporation engaged in the business of canning fruits and vegetables at Owensboro, Ky. The defendants, L. & J. A. Stewart, were manufacturers of tin cans for canning fruits and vegetables. Their place of business was at Rutland, Vt. The basis of plaintiff's claim was that in February, 1903, it made an agreement with the defendants whereby the latter undertook to furnish it as many as 100,000 cans and 50,000 more if it elected to take such additional quantity. At the time of the purchase it was agreed that the cans were to be so manufactured as to exclude the air therefrom, and preserve the contents of the cans if the tomatoes were properly processed. The defendants defended on the ground that the contract executed between the parties was in writing and contained the whole contract. This contract is as follows:

"Washington, D. C. Feb. 15, 1903. "Order No. ___

"L. & J. A. Stewart.

"Ship to the Blue Grass Can. Co.

"At Owensboro.

"How ship--By freight. When--June 13th.

"Terms: Sight draft, bill of lading attached.

"50 M. 3 lb. cans, 21.50.

"Seamer furnished free of rent but to be returned at end of season, or to be paid for at $400.00 their option. Guarantee the cans against leaks caused by leaks in manufacture all above 2 to the thousand.

"L. & J. A. Stewart,

Blue Grass Canning Co., Inc.,

By J. Ed. Guenther, Pres't."

By amended petition the plaintiff charged that this contract was executed by mistake. Under the circumstances it was proper to admit testimony to vary the terms of the written agreement. During the progress of the trial the court permitted the Central Trust Company, as trustee in bankruptcy of the Blue Grass Canning Company, to file its petition and become a party to the action. It may be true that the question whether or not the Central Trust Company should prosecute this action was considered at a meeting of the creditors, and it was decided not to do so, but application was made to the United States Court for the Western District of Kentucky, and authority there given to the trustee to prosecute the action on condition that the sureties in the attachment bond execute bond in this action for the payment of all costs that might accrue. This bond was executed, and the case accordingly proceeded. It is contended that authority was given the trustee merely to prosecute the suit in its own name, and not to prosecute it in the name of the plaintiff. Whether this be true or not, it is immaterial, as the result in either case would be the same.

Some point is made of the duty of plaintiff to return the cans purchased of defendants immediately, or to make complaint of their imperfection. According to the testimony for plaintiff, however, the defects were latent, and the effect upon the tomatoes could not be shown until they were placed in the cans and time allowed for the fermentation process to take place. Under this state of facts we would not hold, as a matter of law, that plaintiff was estopped to recover damages because it retained the cans and made use of them. Summers Fiber Co. v. Walker, 109 S.W. 883, 33 Ky. Law Rep. 153.

In the court's instructions the question whether the writing filed with defendants' answer constituted the whole contract, or whether the contract was as claimed by plaintiff, was fairly submitted to the jury. In case the written contract contained the whole contract, the instructions authorized a recovery for loss by leakage of cans from defective manufacture above two in a thousand, and in case the jury believed the paper of February 15, 1903, did not contain the whole contract between the parties, then a recovery was authorized for damages based upon plaintiff's evidence as to what the contract was. The jury were further told that, if the cans were defective in manufacture above two in a thousand, and plaintiff could have discovered the defects by ordinary care and inspection, and failed to do so, then defendants were not liable for any loss of fruits or vegetables placed therein in excess of two to the thousand. In giving the measure of damage the jury were told to find the value of the lost fruit. While the court should have used the expression ...