Ludlow Lumber Co. v. Kuhling

• Decision Date: 08 December 1904
• Parties: LUDLOW LUMBER CO. v. KUHLING et al.
• Court: Kentucky Court of Appeals

83 S.W. 634

119 Ky. 251

LUDLOW LUMBER CO. v. KUHLING et al.

Court of Appeals of Kentucky.

December 8, 1904

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by Chas. J. Kuhling and others against the Ludlow Lumber Company, a partnership. Judgment for plaintiffs. Defendants appeal, and plaintiffs bring a cross-appeal. Affirmed.

Furber & Jackson and B. F. Graziani, for appellant.

Wm. A Byrne, for appellees. Orlando P. Schmidt, for B. C. Davis.

PAYNTER J.

The appellees owned a lot in Ludlow, and, desiring to have a brick house built upon it, they entered into a contract with T. Johnson and others, as partners doing business under the firm name of Ludlow Lumber Company, by which they, in consideration of $2,100, agreed to furnish the material and labor and erect the house according to the plans and specifications. It was completed in October, 1901, when it was turned over to the appellees under representations by the appellants that it had been completed according to the contract. The appellees lived in it until May, 1902, a period of eight months, when they awoke one morning and found the walls of the house badly cracked and out of plumb; and it cost them several hundred dollars to repair the foundation and house. This action was brought against appellants to recover damages for the defective construction of the house. The defendants sought to avoid a recovery by showing that it had been completed according to the contract, and that the damages resulted from a cause other than defective construction. The verdict of the jury, which was sustained by the court, and upon which the judgment was rendered, allowed the plaintiffs $338.95.

There was a conflict in the testimony, but it was the province of the jury to reconcile it, and, having done so, this court must decline to disturb the finding of the jury upon the question of fact.

The principal reason urged for a reversal is that the appellees accepted the house, and moved into and lived in it for eight months before discovering the alleged defect. Even if there had been a defect in the construction, and they had knowledge of it before moving into the house, that fact would not prevent them from recovering for the breach of the contract. The law on this question is well stated in Morford v Mastin, etc., 6 T. B. Mon. 609, 17 Am. Dec. 168, in which the court said: "We are unwilling to attach so much importance to the defendant's receiving the work. How could he reject it without abandoning his estate on which it was situated? It was already part of his freehold, and he received every part as it progressed. The court seems to have confounded the case of a building on an employer's premises with such jobs of work and labor as a tailor performs in making his garment, the cabinet maker his furniture, or the painter his...