207 Ky. 8 | Ky. Ct. App. | 1925
Opinion op the Court bt
Reversing.
This litigation was commenced by appellee Price against appellant, Pox Brown, in the Warren circuit court, in November, 1922, on a verbal contract between Brown on the one side and Price and Hamilton on the other, for the purchase of slack coal at the price of ten (10c) cents per bushel, it being alleged by Price in his original petition that such a contract was made between them, and that pursuant to it he had advanced Brown the ■sum of $300.00 and that the slack furnished by Brown was old and worthless; that in towing the coal in barges from the place of delivery to Bowling Green, the place of business of appellee Price, he had expended $400.00, and these sums he sought to recover. He also averred that if •appellee Brown had furnished slack coal in accordance with the contract that he (Price) could and would have made a profit of $400.00 on the two barges of coal. Appellant Brown answered and admitted that he made the contract, but denied the averments of the petiton with respect to the quality of the coal, and later filed an amended answer in which he pleaded the coal was of the quality sold and contracted to be delivered, and by way of counterclaim averred he was entitled to recover the bal
A jury trial was had resulting in a verdict for the plaintiffs, Price and Hamilton, in the sum of $700,00, being the $300.00 advanced and the $400.00 expended in towing the coal from place of delivery to Bowling Green.
We have examined the evidence with great care and find there is a sharp conflict in it as to the inspection of' the coal by the purchasers at the place of delivery. Appellant Brown insists, and introduces evidence to prove, that the purchasers sent their agents to examine the coal before it was loaded and that he pointed out the coal to them and it was declared satisfactory; that later when the coal was being loaded one of the purchasers and some of his agents were present and saw and examined the coal and made no objection to. its quality. On the other hand, the purchasers say that they notified appellant Brown that 'the quality of the coal was not satisfactory at the time he was loading it and that it would not be accepted. Notwithstanding this conflict, we think the case is of easy solution upon the pleadings. According to the averments of the original petition the coal was to be “delivered on barges at or near Mining City, on Green river, in Butler county, -Kentucky, ’ ’ which was near the mine and the place where the coal was actually delivered
Under the state of the pleadings-and the proof appellant Brown was entitled to a peremptory instruction as moved for by him, and the court was in error when it overruled his motion.
For the reasons indicated the judgment is reversed for new trial consistent herewith.
Judgment reversed.