Vogel v. Moore

• Court: Kentucky Court of Appeals
• Writing for the Court: SETTLE, J.
• Citation: Vogel v. Moore, 84 S. W. 557 (Ky. Ct. App. 1905)
• Decision Date: 12 January 1905
• Parties: VOGEL et al. v. MOORE et al.

84 S.W. 557

VOGEL et al. v. MOORE et al.

Court of Appeals of Kentucky.

January 12, 1905

Appeal from Circuit Court, Franklin County.

"Not to be officially reported."

Action by J. J. Vogel and others against S. P. Moore and others. Judgment for defendants. Plaintiffs appeal. Reversed.

John W Rodman, for appellants.

B. G Williams, for appellees.

SETTLE J.

Appellants on June 22, 1903, sued appellees in the Franklin circuit court for $259.31, balance due upon account for merchandise consisting of boots and shoes, sold and delivered them in the months of August and September, 1902. The statement of account filed with the petition indicates that appellees purchased of appellants August 19, 1902, a bill of goods mentioned, amounting to $180.35, September 12, 1902, another of $132.36, and yet another of $22.40 September 15, 1902--making altogether $335.71; and appellees are credited in the account by $26.40 paid February 3, 1903, and $50 paid May 18, 1903, leaving unpaid the sum of $259.31, sued for. The purchase of the foregoing bills of merchandise, as well as the correctness of the respective amounts charged therefor, were admitted by the answer of appellees. It is averred in the answer that, in addition to the several bills of merchandise mentioned in the petition, appellees purchased of appellants two others-- one of $754.50, July 11th, and one of $187.20 August 5, 1902. That at the time of making the order of July 11, 1902, appellees being ignorant as to the quality and workmanship of such boots and shoes as were sold by appellants, the latter gave an express warranty to the effect, first, that the boots and shoes they would furnish them should be of first-class quality and workmanship; second, that they would be satisfactory to appellees, and adapted to their trade; third, that if the goods were found to be unsatisfactory to appellees, and unsuited to their trade, appellants would take back such of them as were not of the quality warranted, and give appellees credit therefor. It was further averred in the answer that the boots and shoes frunished appellees by appellants under the foregoing alleged contract of sale and warranty were discovered by appellees to be of inferior quality and workmanship, unsalable, and unsuited to appellees' trade, and consequently unsatisfactory to them; that many of the boots and shoes sold by appellees to their customers out of the stock bought by them of appellants were soon returned to them as worthless, and that by reason of the inferior quality of the boots and shoes sold them by appellants, and their unsuitableness to appellees' trade, they were unsalable, and the bulk thereof were left upon their hands, or had to be sold at great loss, instead of profit, whereas, if they had been of the quality and workmanship represented by appellants, and suitable for appellees' trade, as warranted, they would have readily sold in great numbers, and at a profit to appellees of not less than 25 per cent., amounting in the aggregate to $313.75. It was further averred that at the date of the filing of the answer appellees had on hand $496.55 worth of the boots and shoes sold them by appellants, which they expressed a willingness to return to appellants. The answer was made a counterclaim, and judgment was asked thereon against appellants for $551.16 damages on account of the alleged breach of warranty complained of, which sum was made up of the $313.75, alleged loss of profits, and $237.41, the amount of the difference between $496.55, the alleged value of the unsold goods purchased by appellees of appellants and the $259.14 claimed by appellants in their petition. By an amended answer, which, though objected to, appellees were permitted to file, they averred that upon their discovery of the alleged defective quality and workmanship of the boots and shoes purchased of appellants they offered to return them, but that appellants refused to accept them. A demurrer was filed by appellants to the answer and counterclaim as amended, but overruled by the court, to which they excepted. Thereupon they filed a reply controverting the material averments of the original and amended answer and counterclaim. Upon the trial of the issues thus formed the jury returned a verdict for appellees, which, in effect, allowed only so much of their counterclaim for damages as equaled in amount the balance of $259.14 due appellants upon account as claimed in the petition. Judgment was entered upon the verdict dismissing the petition and allowing appellees their costs. Appellants filed motion and grounds for a new trial, but the motion was overruled, and the record brought to this court by appeal presents for our consideration the judgment and rulings of the lower court complained of.

We think the trial court erred in overruling the demurrer to the answer and counterclaim, as amended, as the facts stated therein do not constitute a good defense or cause of action upon the counterclaim. It will be observed that the answer expressly admits the appellees' indebtedness for the amount claimed in the petition, and that this amount--$259.14 --is all that remained unpaid of an indebtedness of $1,255.09, contracted by them for goods purchased of appellants between July 11 and September 15, 1902. It is averred in the answer and counterclaim that $942 worth of the goods received by appellees of appellants were purchased prior to August 19, 1902, and that the contract containing the alleged warranty from appellants set out in the answer was made when the orders of July 11 and August 8, 1902, for goods, were made by appellees. It is not, however, averred in the answer and counterclaim that the warranty of appellants extended to or embraced the subsequent sales of goods of August 19, September 12, and September 15, 1902, and yet the goods purchased by appellees at the three sales last named are the goods for the price of which appellants sued in this case. In other words, the language of the answer and counterclaim seem to confine the alleged warranty to the two sales of July 11 and August 5, 1902. It is not averred in the answer and counterclaim in what respect the boots and shoes were defective, or why they were unsalable, and the statement of the pleaders that they were not adapted to the...