National Seed Co. v. Leavell

• Decision Date: 14 March 1924
• Citation: 259 S.W. 1035,202 Ky. 438
• Parties: NATIONAL SEED CO. v. LEAVELL ET AL.
• Court: Kentucky Court of Appeals

259 S.W. 1035

202 Ky. 438

NATIONAL SEED CO. v. LEAVELL ET AL.

Court of Appeals of Kentucky.

March 14, 1924

Appeal from Circuit Court, Christian County.

Action by S. J. Leavell against the National Seed Company and another. From an adverse judgment, the named defendant appeals. Affirmed.

Davies Page & Downing, of Louisville, and John T. Edmunds, of Hopkinsville, for appellant.

Selden Y. Trimble and Douglas Bell, both of Hopkinsville, for appellee S. J. Leavell.

John Stites, of Hopkinsville, for appellee Young Hardware Co.

THOMAS J.

The appellee and plaintiff below, S. J. Leavell, is a farmer living in Todd county near Trenton, Ky. He filed this action in the Christian circuit court against appellant, National Seed Company and appellee Young Hardware Company, defendants below, seeking a recovery against them jointly for damages growing out of a breach of warranty of a purchase of 40 bushels of millet seed which he alleged in his petition was made by him on the 7th day of May, 1919, in Hopkinsville, in the storehouse of the defendant Young Hardware Company, and that defendants warranted the seed to be Tennesee type big-headed German millet, of good quality and suitable for seed purposes. In a second paragraph he averred that defendants fraudulently represented to him that the seed was of the character named when in truth and in fact they were not and were known by defendants not to be so; and he claimed damages in the sum of $5,995. As a basis therefor he alleged that the seed was not of the kind mentioned, but was of an inferior grade of western millet, and that the difference in the value of the two crops, which would and could have been grown during that season, was the amount sued for.

The defendant Young Hardware Company admitted in its answer that plaintiff purchased the quality of millet seed claimed in his petition, but denied that it sold to him the seed, and alleged that the sale was made exclusively by its codefendant, National Seed Company. The latter first filed a special demurrer to the petition which was overruled. It then moved the court to require plaintiff to elect whether he would prosecute his action for a breach of warranty or for the alleged deceit, which was also overruled, and it filed a general demurrer to the petition which shared a similar fate and it then filed its answer in which it denied making the sale of the seed to plaintiff, and also denied the warranty or the deceit as well as the damages. In a second paragraph it pleaded that it was a Kentucky corporation with its principal office and place of business in the city of Louisville, and that the Christian circuit court had no jurisdiction of the action against it, and it asked that it be abated. That motion was overruled, and upon trial before a jury there was a verdict in favor of plaintiff against the National Seed Company for the sum of $1,500, but the jury returned a verdict in favor of the defendant Young Hardware Company. The motion of the National Seed Company for a new trial was overruled, and it prosecutes this appeal, insisting through its counsel on a number of alleged errors committed by the trial court.

The first one to which we will direct our attention is the jurisdiction of the Christian circuit court. The petition did not show on its face a want of jurisdiction of that court of the case against appellant, but on the contrary it appeared therefrom that the contract for the purchase of the seed was jointly made by the two defendants in Christian county. One of them was located and served in that county, which prima facie authorized the service of summons on appellant in Jefferson county. That being true, the special demurrer filed by appellant was properly overruled, since the objections to the jurisdiction of the court sought to be raised by it did not appear from the face of the petition. Hughes v Shehan, 192 Ky. 619, 234 S.W. 285, and other cases referred to therein. The improperly filed special demurrer, followed by the motion to elect and by the general demurrer, before relying on the objection to the jurisdiction in the proper manner, had the effect to waive that question, and to require appellant to try the case on its merits. McDowell v. C. O. & S.W. Ry. Co., 90 Ky. 346, 14 S.W. 338, 12 Ky. Law Rep. 331; Gillen v. Illinois Central Ry. Co., 137 Ky. 375, 125 S.W. 1047; and Illinois Central Ry. Co. v. Glover, 11 S.W. 630, 24 Ky. Law Rep. 1447. The court, therefore, properly ruled that the plea in abatement came too late.

It is next insisted that the court erred in excluding offered evidence by appellant to prove an alleged custom attempted to be pleaded in the answer to the effect that in the sale of seeds, such as we have here, there is no warranty of either kind or quality, and also erred in refusing to instruct on such alleged custom. It might be well doubted whether the alleged custom could be given any defensive effect under the facts of this case, if it had otherwise measured up to the legal requirements in order to justify reliance thereon since no custom, howsoever well established, may be relied on to contradict the express terms of a contract; and plaintiff relied in this case on an express warranty. The same question was involved in the very recent case of Hobdy and Read v. Siddens, 198 Ky. 195, 248 S.W. 505, and the same contention was therein denied, although the contract of purchase in that case was a verbal one as is true here. That a...