119 Ky. 885 | Ky. Ct. App. | 1905
Opinion of the court by
Reversing.
This action was instituted, by the appellant in the Green-up circuit court. A general demurrer to the petition was sustained; he declined to plead further, and a judgment was rendered dismissing the petition, from which he appeals.
The petition disclosed the following facts: That appellant was engaged in the manufacture and sale of lumber in Webbville,- Lawrence county, Ky., and that on the 11th of January, 1901, he delivered to the agent of the appellee the following message:
“Webbville, Ky., January 11, 1901. N. Fisher, Vermillion, Ohio: Will furnish bill at thirty-five net to me Cleveland. H. N. Fisher” — meaning that appellant would sell and deliver 49,410 feet of lumber at Cleveland, Ohio, at the price of $35 per thousand feet net. It was alleged that this message was delivered to the .sendee, N. Fisher, by the appellee,
The appellee insists that the action of the lower court in sustaining the demurrer was correct, and cites as the only authority sustaining this position the case of Postal Tele
Whether or not appellant had any cause of action against N. Fisher, the sendee of the message, we do not decide, as that matter is not now before us. But even if he did have, he has refrained from incurring extraordinary expense in litigating the matter in a foreign State, and is seeking to recover from the party primarily liable by reason of its alleged negligence. We are therefore of the opinion that the lower court erred in sustaining a demurrer to appellant’s petition.
Wherefore the judgment is reversed, and the .cause remanded for further proceedings consistent herewith.