Stanley v. Day

• Decision Date: 14 October 1919
• Citation: 215 S.W. 175,185 Ky. 362
• Parties: STANLEY v. DAY ET AL.
• Court: Kentucky Court of Appeals

215 S.W. 175

185 Ky. 362

STANLEY v. DAY ET AL.

Court of Appeals of Kentucky.

October 14, 1919

Appeal from Circuit Court, Boyd County.

Action by Harlan T. Day and others against Robert E. Stanley. From a judgment for plaintiffs, defendant appeals. Reversed.

May &amp May, of Prestonsburg, and R. S. Dinkle, J. J. Montague, and C. L. Williams, all of Catlettsburg, for appellant.

John F Coldiron and Geo. B. Martin, both of Catlettsburg, for appellees.

HURT J.

This action by the appellees, Harlan T. Day, Sanders P. Lyon, and Laban T. Simpson, was instituted against the appellant Robert E. Stanley, for damages for the breach of an express warranty, alleged to have been made to them by appellant, in a contract for the sale of a large number of hogs. The warranty was made, as contended by appellees, while negotiations for the contract for the sale of the hogs was under way, and consisted of a representation made by appellant to the effect that the hogs, which he was offering to sell, were sound and free from cholera, and the breach alleged was that the hogs, at the time of the sale and delivery, were unsound and diseased--that is, were sick from hog cholera, and from the effects of which 400 of the hogs died, and the remaining 256 were depreciated in value--and the appellees were forced, on account of the sickness of the hogs and to minimize the damages from the sickness, to pay large sums, in feeding, attentions to, transportation of, and medicine for, and medical attentions to, the sick hogs, which they would not have had to do, if the hogs had been as warranted. Connected with the allegation in the petition that the hogs were unsound and sick at the time of the sale and delivery, it was alleged that their sick and unsound condition was not known by the appellees, but was known to the appellant.

The appellant interposed a general demurrer to the petition, but this was overruled. After a motion had been sustained, requiring the appellees to make more specific the allegations of the petition, which they did by an amended petition, the appellant answered, traversing the allegations that he made the warranty, or that the hogs were unsound, at the time of the delivery, or that he had knowledge of such unsoundness, and further averring that, at and before the delivery of the hogs to appellees, at his request, they made an inspection of the hogs, for the purpose of excluding from the delivery any of the hogs which they did not desire to take, and did reject two hogs on account of their unlikely appearance.

At the conclusion of the evidence for appellees, the appellant moved the court for a directed verdict in his favor, but the motion was overruled. The result of the trial was a verdict and judgment in favor of appellees for the sum of $3,000, and, appellant's motion to set aside the verdict and judgment and to grant him a new trial having been overruled, he has appealed.

The appellees did not offer any instructions to be given to the jury, but the appellant offered several instructions, all of which were objected to by the appellees, and the objections sustained, to which rulings the appellant excepted. The court then gave five instructions, to each of which the appellant objected, and, his objection being overruled, he saved an exception. The appellees made no objection to either of the instructions given.

(a) The contention made by appellant that the cause of action attempted to be stated in the petition was an action based upon fraud and deceit, and not an action for a breach of a contract of warranty, and for that reason the court should have directed the jury as in an action of fraud or deceit, instead of as in an action for a breach of warranty, cannot be upheld. It is clear that the cause of action attempted to be relied upon is for the breach of a contract of warranty, although it is defectively and imperfectly stated. The mere fact that it is incidentally stated in the petition that the appellant knew of the unsound condition of the hogs does not preclude the appellees from maintaining their action upon the warranty, if one was made. Otherwise, the right to maintain an action upon a warranty of soundness made by a vendor, when he knew that the thing sold was unsound, would be at the option of the fraudulent vendor. In an action for a breach of warranty, averments of fraud, unnecessarily connected with the averments setting forth the warranty and its breach, do not affect the right to recover upon the warranty, when it is proven, although there is no evidence of the fraudulent character of the representation, which constitutes the warranty. Chestnut v. Ohler, 112 S.W. 1101; 35 Cyc. 443; Massie v. Crawford, 3 T. B. Mon. 218. In an action for breach of an express warranty, it is not necessary to allege that the seller, who made the warranty, had knowledge that the warranty was false, and, being unnecessary to be alleged, it is not necessary to prove it to support the action. Tyler v. Moody, 111 Ky. 191, 63 S.W. 433, 54 L. R. A. 417, 98 Am. St. Rep. 406.

(b) Neither is the contention of appellant tenable to the effect that the representations and promises which appellees claim that he made at the time the contract for the sale was entered into are insufficient to constitute an express warranty that the hogs were sound, if the representations were relied upon by the appellees and operated as an inducement to some extent, at least, by them to make the contract. The contract in the instant case was for the sale of the hogs, to be delivered at certain places within 20 days, and, as contended for by appellees, it was further a part of the contract that the hogs should be sound and free from disease. The evidence offered by appellees to prove the warranty was that during the negotiations between the parties, and at the time the sale was made, and just preceding the agreement upon the terms of the contract as to the price of the hogs, and where they were to be delivered, and at what time, one of the appellees testified as follows:

"When we was talking on a trade, I asked him if there was any cholera among these hogs, and he said there was not. He said these hogs were in good condition, these hogs were to be sound hogs, and he said there was no cholera in that country, and that they were to be sound hogs. Q. Did he say anything about making them good? A. Yes, sir; he says, 'I trade with everybody; I am responsible for what I do and what I sell; I trade with everybody, and what I sell I make it good.' "

Assertions of fact concerning the condition, or statements amounting to a promise as to the condition, of the property, and not mere expressions of opinion or belief, made by a vendor during the negotiations for the sale of personal property, and intended as an inducement to the vendee to purchase, and upon which the vendee does rely in...