18 P.2d 118 | Kan. | 1933
The opinion of the court was delivered by
Plaintiffs sued for damages alleged to have resulted
To determine the questions before us we look to the pleadings, answers to the special questions, and general verdict. Briefly, the petition alleged plaintiffs, being the owners of two lots at the corner of Commercial street and Fifth avenue in the city of Emporia, and in the business section of the city, in 1929 began the construction of a brick building thereon and bought large quantities of the building material from defendant, a part of which consisted of face brick for use in the north and west walls of the building. Defendant’s manager was told and understood the purpose for which the brick was to be used and produced samples of brick from which a selection was made. Plaintiffs’ order called for number one face brick of the best quality, and defendant’s manager represented and warranted to plaintiffs “that the brick so purchased and delivered by defendant would be number one face brick of the best grade;” and “warranted that such brick would be satisfactory to the plaintiffs, and that the defendant would ‘stand behind’ the purchase;” that the brick was purchased in reliance on such express warranty. The building was completed in February, 1930. Early in the spring of 1930 plaintiffs discovered that a large number of the brick were scaling off, or otherwise disintegrating, and they so advised defendant, whose manager examined the walls and advised plaintiffs to wait and watch developments through the winter season of 1930 and 1931; that within such period the condition became worse. Defendant frequently examined the building and had representatives of the manufacturers of the brick examine them. Plain
Defendant in its answer admitted that plaintiffs own the real property described; that they purchased from the defendant face brick which were used in the north and west walls of the building, and that the order placed with defendant called for number one face brick, arid denied all other material allegations of the petition.
In answering special questions the jury found there were 1500 defective brick in the walls of the building at the time of the trial; that such defective brick could be replaced with good brick, leaving the walls in substantially the same' condition as if the brick had been good in the first instance, and that the cost of making such replacement would be $675. No point is made in this appeal with respect to these answers. The question and -answer which give rise to the appeal are as follows:
“Q. Are the defects in the brick in question caused by inherent defects in the brick themselves which existed when the brick were delivered to plaintiffs, or do such defects as now appear result from some other cause or causes? A. Inherent defects in brick possible, but evidence not conclusive.”
Appellant contends, with much reason, that the answer demonstrates that the jury was finable to determine from the evidence whether the defects apparent in the brick at the time the action was brought' and at the time of the trial were inherent defects in the brick which existed when the brick were delivered to plaintiffs; that the answer on that point is similar to an answer, “We don’t
We are told in the oral argument and in the briefs that the wit
In > order to recover in this case plaintiffs were not compelled to show what caused the brick to crack and scale. Plaintiffs allege that the brick were warranted to be satisfactory in the walls; that this warranty was broken, to their damage. The fact that the jury could not tell what caused the defect in the brick does not require the setting aside of the general verdict. Particularly is that true when we are told no one could tell from the evidence what caused such defect. °
The judgment of the court below is affirmed.