Vandiver v. B. B. Wilson & Co.
| Decision Date | 21 June 1932 |
| Parties | VANDIVER et al. v. B. B. WILSON & CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Franklin County.
Action by B. B. Wilson & Co. against J. Harvey Vandiver, who filed a counterclaim. From a judgment for plaintiff, defendant and his trustee in bankruptcy appeal.
Affirmed.
See also, 241 Ky. 33, 43 S.W.2d 329.
R. W Keenon and Wm. Sandifer, Jr., both of Lexington, for appellants.
Morris & Jones, of Frankfort, for appellees.
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 or 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 petition. 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 appellees 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 appellees sent their employees to the place where the Ingersoll compressor was being used for the purpose of trying to repair it, but they failed to put it in perfect condition so that it would operate the two drills or furnish sufficient air for such purpose; that it was agreed that the Sullivan air compressor was not to be delivered by him until the Ingersoll compressor was delivered in perfect condition, sufficient to produce free air for his road work; that he relied on the representations of the appellees relating to the compressor, and for this reason did not procure another one; that he had a large number of hands employed; that the steam shovel was worth to him $20 per day; that his hands lost 100 days; and that he was damaged by reason of the facts herein stated $8,000 subject to be credited by the amount of appellees' claim.
The court sustained a demurrer to the answer as amended. Vandiver filed a second amended answer and counterclaim wherein he reiterated substantially the allegations of his original and amended answer and counterclaim, and further averred that "he entered into a parol contract with the plaintiff wherein said plaintiff agreed to repair said air compressor so that it would furnish sufficient free air to operate the drills as herein set out but that after said verbal contract was entered into the plaintiff failed and refused to make said air compressor furnish the air or comply with the oral...
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