Vandiver v. B.B. Wilson & Company

• Decision Date: 21 June 1932
• Parties: Vandiver et al. v. B.B. Wilson & Company.
• Court: United States State Supreme Court — District of Kentucky

244 Ky. 601

Vandiver et al. v. B.B. Wilson & Company.

Court of Appeals of Kentucky.

Decided June 21, 1932.

1. Pleading. — Answer and counterclaim must be read with all facts stated therein to determine their sufficiency on demurrer.

2. Pleading. — While allegations of answer and counterclaim must be taken as true on demurrer, inferences cannot be indulged in pleader's fovor.

3. Pleading. — Allegations of answer and counterclaim must be construed most strongly against pleader on demurrer.

4. Pleading. — Exhibit made basis of cause of action or defense and contradicting averments of pleading must control.

5. Pleading. — Pleading, averments of which are contradicted by exhibit made basis of cause of action or defense, is bad on demurrer.

6. Pleading. — Pleading of doubtful import must be most strongly construed against pleader.

7. Pleading. — In absence of allegation in answer and counterclaim that any portion of parties' agreement was omitted from written contract by plaintiff's fraud or parties' mutual mistake, terms of written contract control on demurrer.

8. Sales. — Answer and counterclaim, alleging that air compressor, warranted in written sale contract to be "in perfect condition," would not produce stated quantity of free air per minute, stated no cause of action for breach of warranty.

9. Sales. — Measure of damage for defects in machinery purchased is difference between reasonable market value thereof, if equipped as provided in contract, and such value in its condition at time of delivery.

10. Sales. — Answer alleging that buyer was damaged because of air compressor's failure to furnish stated quantity of free air per minute held demurrable as not alleging breach of express warranty that machinery was in perfect condition; presumption being that specific defects alleged were not proximate cause of damage.

11. Sales. — Answer setting up counterclaim, based on representations not alleged to have been intended as part of written sale contract or omitted therefrom by fraud or mutual mistake, held bad on demurrer.

12. Sales. — Warranty expressed in written sale contract implied excludes all inconsistent implied warranties on same subject.

13. Sales. — Warranty will not be implied, where sale contract expressly stipulates against its existence or declares that no other warranty was made or may be relied on.

14. Sales. — Oral contract, subsequent to written sale contract, for repair of machinery by seller, held invalid and unenforceable, in absence of allegation of consideration therefor.

Appeal from Franklin Circuit Court.

R.W. KEENON and WM. SANDIFER, JR., for appellants.

MORRIS & JONES, for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

The decisive question to be determined on this appeal is the sufficiency of the appellants' answer and counterclaim and the amendments thereto.

In 1926, B.B. Wilson & Co., a partnership composed of Horace H. Wilson, Tilford Wilson, and E. Reed Wilson, engaged in business at Lexington, Ky., sold and delivered to J. Harvey Vandiver, an Ingersoll air compressor at the price of $1,700, of which $1,000 was evidenced by his note, and $700 was paid by the delivery of one Sullivan air compressor. The contract of purchase was evidenced by writing, signed and delivered by Vandiver, and accepted by B.B. Wilson & Co., wherein it recited that the company agreed

"to deliver to him f.o.b. Berea, Ky., one 9R 8x8 portable air compressor . . . guaranteed to be in perfect condition; to be put on the job and put to work by B.B. Wilson & Company."

The above was written into the printed form of contract, but the printed portion contained this provision:

"It is further agreed that this contract contains all the agreements and understandings expressed or implied between us, and that B.B. Wilson & Co., shall not be responsible for any delays in transportation or should you be held responsible for any delays or damages caused by defective material or workmanship in machinery of equipment or will any allowance be made for repairs or alterations unless same is authorized in writing."

Vandiver failed to pay as he agreed; he claimed that the machinery was not in perfect condition when delivered. B.B. Wilson & Co., filed this action in the Franklin circuit court to recover of him the balance on the air compressor, and also on an account for goods, wares, and merchandise, furnished and delivered to him during the year 1926. With the original answer he filed a copy of the written contract for the air compressor. His allegations therein relative to the compressor are in these words:

"That said air compressor was not as warranted or in good condition, in that the governors were off of said compressor, it was without a tank, the radiator leaked, the blocks under the compressor were bursted, and it failed to furnish 210 cubic feet of air per minute, and said air compressor was of no value to the defendant, that by reason of this the defendant has been damaged in the sum of $1,700.00."

The allegation was made that

"he purchased the air compressor for the purpose of using it in road construction and that the compressor was to furnish sufficient air to run two drills. . . and by reason of the failure of the air compressor to furnish sufficient air, and because of the condition of the air compressor at the time it was received, he was unable to blast sufficient rock to keep the steam shovel and employees busy, and thereby said compressor was worthless and of no value to this defendant."

He alleged that the "plaintiff represented to the defendant" that the air compressor was to be in first class condition, capable of furnishing 210 cubic feet of air per minute, sufficient to operate two air drills, and that he relied on the statements made by them, and was induced thereby to purchase the drill; that "the plaintiffs knew at the time that he was engaged in road construction under a contract with the State Highway Commission." The court sustained a demurrer to the answer. Vandiver amended his answer and counterclaim in which he alleged that he was operating the Sullivan air compressor which was not sufficient to operate two drills and keep his steam shovel engaged, and that B.B. Wilson & Co., knew the purpose of his purchase of the Ingersoll air compressor and guaranteed it to be in perfect condition; that, if it were in perfect condition, it would be sufficient to produce 210 cubic feet of free air per minute and to furnish air to run two drills. He again alleged that appllees had knowledge of the kind and character of work he was engaged in and the amount of necessary air required to operate two drills, and that appellees represented that the Ingersoll air compressor "would produce the necessary cubic feet of free air to operate two drills"; that when it was delivered "the same was not in perfect condition"; that "the governors were off"; that "it was without a tank," "the radiator leaked," and "the blocks under the compressor were bursted," and "it failed to furnish the necessary cubic feet of free air per minute or sufficient air to operate two drills"; and that

"by reason thereof, the same was practically worthless to this defendant in that it would not furnish sufficient air to operate two drills or one drill and keep the shovel busy and the hands employed by this defendant."

He further averred that the...