204 Ky. 98 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming the judgment in each ease.
On October 30, 1919, the appellee and defendant below, Price Chemical Company, a corporation, by written order made through the brokerage firm of Davidson Commission Company, agreed to purchase from W. J. Downey, appellant in the first case in the caption and doing business in the firm name of W. J. Downey & Company, one thousand tons of “City of Chicago unground garbage tankage” at $8.00 per ton f. o. b. cars Chicago, Illinois, and to be shipped at seller’s option under directions of the purchaser at any time during the months of November and December, 1919, and January, 1920. The contract'expressly stated that “no guarantee of any kind given.”
On the next day it gave through the same commission company another order for a like quantity of the same material and at the same price to the appellant and plaintiff below in the second case in the caption, the Proto-Peed & Guano Company. Following that defendant gave shipping instructions to plaintiff, Downey, under which he shipped to it and to some of its customers elsewhere, 174 tons of the alleged purchased article, ■which quantity was accounted for and paid for by defendant at the contract price. Defendant in the second case, Proto-Feed & Guano Company, also made some sample shipments amounting in the aggregate to 47 tons, which was like-wise received and paid for by defendant. There remained unshipped of the quantity of material bought from Downey 826 tons and of the quantity bought from the Proto-Feed and Guano Company 953 tons, all of which defendant declined to accept, receive or pay for
Answers in each of the cases relied on a breach of a relied on implied warranty in each of the contracts that the article sold should at least correspond with and come within the commercial classification of the one purchased, and that the article with which both, plaintiffs proposed to fill their contracts did not do so and it was of no commercial value whatever. Another paragraph sought, by way of counterclaim, to recover $500.00 from each plaintiff as damages sustained by defendant for their failure to comply with their contracts'because, as defendant alleged, the market value of the unground garbage tank-age purchased by it increased from $8.00 per ton to $8.50 per ton, and that it lost such increase in price because of plaintiffs’ failure to comply with their contracts. Appropriate pleadings made the issues and the cases were tried together resulting in a verdict in each case denying plaintiffs’ right to recover any sum, but finding in favor of defendant against each plaintiff the sum of $500.00, upon which judgment was rendered, and the court declining to set it aside on a motion for a new trial plaintiffs prosecute these appeals.
Learned counsel for appellants relies on and discusses with much vigor many supposed reasons wherein, according to his opinion, the judgments are erroneous and should be set aside, but it would serve no useful purpose either to the parties or to the profession to discuss seriatim the various questions raised and vigorously pressed, since, according to our view, the decisive ques
Garbage of the kind involved here, when properly prepared, according to the evidence, is brought to the state that it becomes what is known to commercial fertilizers as “tankage,” and when tankage is thus made it is called “garbage tankage.” It may be ground or unground, the latter commanding a less price on the market than the former. So that, the essential point of inquiry in these cases was, what did the parties mean by designating the commodity in the contracts as “unground garbage tankage” or what did that description include, and the inquiry might be extended to what they meant by the ‘ ‘ City of Chicago unground garbage tank-age?” The proof is overwhelming (though there is some to the contrary) that by the term “unground garbage tankage ’ ’ is not only meant that the tankage is unground and is composed of garbage, but that in order to become the designated commercial article or product it should not only be degreased but also have extracted from it -all
But it is insisted that in the questions propounded to some of the witnesses they were asked what constituted, as commercially understood, “unground garbage tankage” without the qualification of the words “Chicago” or “City of Chicago',” so as to enable and to require the witness to answer as to the composition of “Chicago unground garbage tankage” or “City of Chicago unground garbage tankage.” If the evidence was such as to show that the qualifying words designated a different commercial product than what was included in the general description of “unground garbage tankage” there would be some force in this objection, since each contract dealt wi^h unground garbage tankage with the descriptive words “Chicago” in the one and “City of Chicago” in the other. But the evidence was equally preponderant that those descriptive words filled no other office than to designate the city within which the garbage was collected and possessed no differentiating effect as to the description of the commercial article known as unground tankage; and that frequently the garbage from which the tankage is made was designated or described by giving the name of the city wherein it was collected, and that such locating words had no further effect than the one indicated, and this question was likewise taken care of in the instructions.
Much complaint is made about the introduction of incompetent evidence and the rejection of supposedly competent evidence, but those objections relate to collateral matters, and even were we to hold that they were meritorious as to such collateral issues none of it could, and necessarily did not, influence or affect the jury in finding the materially essential issue in defendant’s favor.
Lastly, it is contended that the verdict in favor of plaintiff for the sum of $500.00 in each case was erroneous because it allowed the recovery of 50 cents per ton, as representing the increased market value of the product over and above the contract price on the entire
Wherefore, the judgments ,are each affirmed, but with the direction to make the credits on them as above indicated.