Piersall v. Huber Mfg. Co.

• Citation: 167 S.W. 144,159 Ky. 338
• Parties: PIERSALL v. HUBER MFG. CO.
• Decision Date: 02 June 1914
• Court: Kentucky Court of Appeals

167 S.W. 144

159 Ky. 338

PIERSALL v. HUBER MFG. CO.

Court of Appeals of Kentucky.

June 2, 1914

Appeal from Circuit Court, Fayette County.

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

Forman & Forman, of Lexington, for appellant.

Geo. C Webb, of Lexington, for appellee.

CARROLL J.

In 1906 the appellant, who will hereafter be styled the plaintiff brought a suit in equity against the appellee, hereafter called the defendant, stating her cause of action in two paragraphs.

In the first paragraph it was averred that in July, 1906, the defendant sold and delivered to the plaintiff an 18 horse power traction engine, and warranted the same to be well constructed, and with proper use and management to be capable of doing well the work for which same was sold, namely, to furnish the power necessary to run and operate a thresher and threshing outfit, which plaintiff then owned and operated and that the engine would pull the separator and outfit from place to place as required in the threshing business; that as an inducement to the purchase, the defendant agreed to supply a competent engineer to start the engine and put it in operation; and that, in consideration thereof, plaintiff paid to the defendant $650 in cash, and agreed to pay it the further sum of $645 on September 1, 1906.

It was further averred that the engine and machinery so sold her was not well constructed, and that, although plaintiff used proper care and management, it was not capable of doing well or at all the work for which it was sold, and did not furnish the power necessary either to run, pull, or operate the threshing outfit; that the pump was defective and failed to work properly; and that defendant failed and refused to furnish a competent engineer to start the engine, and, by reason of the several breaches of the contract, plaintiff was put to great loss of time and expense, and lost the use of the engine from July 2d to July 6th, at which last-named date another was procured to take its place, by all of which she was damaged in the sum of $1,000, for which amount she prayed judgment.

In the second paragraph it was further averred that, after the defendant had full notice of the defective and insufficient character of the engine, and at a time when the plaintiff was in ignorance of its defective and insufficient condition, the defendant procured her to execute a written order for the engine, and to pay the $650 in cash, and execute the note for $645, and that, in procuring said written order and the payment of the money and the execution of the note, the defendant fraudulently concealed from plaintiff the defective and insufficient condition of the engine, and the fact that it did not comply with the warranty previously made.

The plaintiff further averred:

"That her claim of this action is for $1,000 damages, based upon the breach of defendant's contract and warranty as to the working capacity of the traction engine, and also for a cancellation of said contract and the recovery of $650 paid by her on account of the purchase price of said engine, with interest thereon from the date of filing this petition, and this plaintiff believes she ought to recover herein $1,000 damages, or such damages as she has sustained by the breach of said contract, and the further sum of $650, the amount paid in cash."

The prayer of the petition was for judgment for $1,000 in damages, for $650, the cash payment, and the cancellation of the contract and the note for $645 executed for the deferred payment.

The circuit court required the plaintiff to elect whether she would prosecute the cause of action to recover $1,000 in damages or the cause of action for a cancellation of the contract, including the note for $645, and a return of the $650 paid in cash, and she elected to prosecute the one for a breach of the contract, and dismissed, without prejudice, the first paragraph of her petition, seeking to recover damages for a breach of the warranty.

After this the case came on for trial in the circuit court, and the plaintiff succeeded in securing a cancellation of the contract, including the note for $645, and a judgment for the recovery of the $650 paid, and this judgment was affirmed by this court in the case of Huber Manufacturing Co. v. Piersall, 150 Ky. 307, 150 S.W. 341.

Thereafter, in 1911, the plaintiff brought this suit, in which she set up, in substance, the same state of facts as were alleged in the first paragraph of her original suit, which was dismissed without prejudice, and sought to recover $1,000 in damages on account of the breach of warranty. This petition disclosed, in an amended petition, the facts with reference to the original suit, and thereupon the lower court sustained a general demurrer to the petition, and the plaintiff appeals.

The ruling of the lower court in sustaining the demurrer was influenced by the fact that the relief sought was inconsistent with the relief obtained in the cancellation of the contract; or, in other words, the lower court was of the opinion that, as the plaintiff had succeeded in a suit to cancel the contract on the ground of fraud, she could not in another suit recover damages for a breach of the contract.

As a general proposition it is well settled that, when a party seeks and obtains the cancellation of a contract upon the ground of fraud, he will not be allowed to maintain an action in damages for a breach of the conditions of the contract that on his motion was canceled and set aside. The right to recover damages for a breach of the warranty in such a case must necessarily be rested upon the ground that there was a contract between the parties, and as a result of the breach of this contract the plaintiff suffered damages. If there was no contract between the parties, it seems obvious that one of them could not maintain an action in damages for the breach of a contract that did not exist. Therefore, when the plaintiff in this case secured relief by disaffirming the contract, and upon the ground that in...