84 Ky. 558 | Ky. Ct. App. | 1886
DELIVERED THE OPINION OE THE COURT.
This is an action by appellant, administrator of E. Fogg, deceased, against appellee, on a note for $532.95, of which $1.25 was for a horse cart, and $531.70 was for twenty-three stacks of what was sold as hemp, which appellee bid for and purchased at a public sale of the personal estate of the decedent. Verdict and judgment were rendered in favor of the plaintiff for only $1.25, the price bid for the horse cart. In defense of the residue of the note, the defendant stated: 1. That when the sale was made, the crop was in stacks on the farm of the decedent, and was represented and warranted by the plaintiff as hemp, but was not inspected by the defendant ; that, shortly after the sale, he proceeded to spread it, and then discovered the first time what he avers to be true, that the crop purchased 'by him was not hemp, but weeds, and utterly worthless, whereupon he notified the plaintiff he would not receive, and tendered it to him. He further says he could not, with ordinary care and diligence, have ascertained, before purchasing, the condition of said crop, and of what said stacks were composed, and that there is no consideration for the note. In the second paragraph of his
The evidence is somewhat conflicting as to the number of stacks that were mixed with weeds, but several witnesses testify positively that the proportion of weeds to hemp in the stacks examined by them was so great as to render them worthless. There is also some conflict in the evidence in regard to the alleged announcement of the plaintiff that he and the family of the decedent would make public all the information they possessed in regard to the quality and condition of all the crops and property sold. But upon both these questions of fact there was sufficient evidence to authorize the verdict of the jury, or at least enough to
The only question, then, it is necessary for us to consider, is as to the ruling of the court on the instructions given and refused.
The jury was instructed, in regard to the defense set up in the first paragraph of the answer, substantially, that if the plaintiff, by himself, or the auctioneer, represented at the time of the sale that the contents of the' twenty-three stacks was hemp, and that the contents was so largely composed of weeds that their distinctive quality as hemp was lost, and such fact was unknown to defendant, and could not be ascertained by an inspection of the stacks by a person of ordinary intelligence and prudence at the time of the purchase, they ought not to find for plaintiff any portion of the purchase price; and if the contents of a portion of them contained so large a proportion of weeds as to have lost its distinctive quality as hemp, then they should allow the defendants a credit or abatement upon the note sued on to that extent.
•In every sale of goods, where the vendor sells an article by a particular description, as was done in this case, it is a condition precedent to his- right to recover the purchase price that the thing which he offers to deliver should answer the description ; and even if delivered, the purchaser may, upon discovering the failure of condition in a reasonable time, return it and avoid recovery of the price. (See Benjamin on Sales, § 600, and authorities cited.)
In Hilliard on Sales, 265, it is said that “there is an
Both Benjamin and Hilliard, however, in their respective works, refer with approval to the following from Lord Abinger, in Chanter v. Hopkins, 4 Mees. & W., 399: “ A good deal of confusion has arisen in many cases upon this subject from the unfortunate use made of the word warranty. Two things have been confounded together. A warranty is an express or implied statement of something which a party undertakes shall be a part of a contract, and, though part of .the contract, collateral to the express object of it. But in many of the cases the circumstances of a party selling a particular thing by its proper description has been called a warranty, and the breach of such a contract, a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfill; as if a man offers to buy peas of another, and he sends him beans, he does not perform his contract; but that is not a warranty; there is no warranty that he should sell him peas; the contract is to sell peas, and if he sells him any thing else in their stead, it is a non-performance of it.”
In this case the plaintiff sold to the defendant twenty-three stacks as being hemp, and whether it be called a warranty that what he sold was hemp, or a condition of the contract, he certainly should not recover the purchase price if the stacks afterwards turned out to be weeds instead of hemp, or if they were composed of such proportion of weeds as that their distinctive quality or character as hemp stacks was lost.
If, using the illustration given, the contract is to sell peas, it is not performed by delivering beans, or such proportion of beans in the package as that its distinctive quality as a package of peas is lost. So the contract here being to deliver twenty-three stacks of hemp, it was not performed by delivering stacks containing such proportion of weeds as that they could not be characterized distinctively as hemp stacks.
The instruction was really more favorable to the plaintiff than he was entitled to; for if even a material portion of the stacks contained such undue proportion of weeds, there was a non-performance of the contract.
It is complained that the instruction given to meet the issue presented by the amended answer and reply thereto was erroneous in hypothecating the right of the defendant to avoid the contract, upon the assumption that the distributees or devisees, instead of the family of the decedent, were aware of the quality of the stacks and failed to give to the bidders information in regard thereto.
It is not necessary to consider the objection to this instruction, inasmuch as the question submitted to the jury by the instruction we have quoted is decisive of the whole case; for if it be true that the stacks were of the sort alleged in the defendant’s answer, he could avoid the payment of the consideration, whether there was fraudulent concealment on the part of those inter
We do not think the court erred or that the plaintiff was prejudiced by the filing of the amended answer, nor was it error to permit the defendant to testify in regard to a transaction between him and the living administrator; nor was it improper to permit bundles taken from the stacks to be exhibited to the jury.
Judgment affirmed.