117 Ky. 382 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
Tbe appellant, J. D. Gardner, brought this action against the appellees, T. J. Winter & Co., for a breach of warranty and deceit in the sate of eighteen bushels of Western German millet seed. In the first paragraph of his petition he relies upon a warranty by the defendants that the seed sold to him was Western German millet seed, suitable for seed, •purposes; and alleges that the seed was not of the quality
The plaintiff proved by a number of witnesses that his crop was almost an entire failure, and that this was not due to any defect in the preparation of the ground to receive the seed, or in its subsequent cultivation. He testified that he had had large experience in the growth and cultivation of Western German millet seed!, and that he had uniformly previous to this time had good success with it: that when he purchased the seed from the defendants he asked for Western 'German millet; that the defendant showed him two different kinds of millet seed, one known as “Southern German Millet,” and the other as “Western German Millet,” and advised him to purchase Southern millet, which was higher in price, but that, relying upon his previous experience with Western German millet, he decided to buy that seed; that the defendants, not having enough of this seed on hand, ordered from a wholesale seed house in Cincinnati, and had it delivered to him in the packages in which it was put up by the firm in Cincinnati. The testimony of the defendants was to the effect that there were two qualities of German millet seed — one grown in the South, which was raised almost entirely for seed purposes;
The first question for decision is the refusal of the trial court to require plaintiff to elect whether he would proceed upon the express or implied warranty relied upon in the
In 2 Benjamin on Salés, sections 987, 988, the rule is stated as follows: “Where a manufacturer or dealer contracts to supply an article which he manufactures! oh produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term of warranty that it shall be reasonably fit for the purpose to which it is to be applied. . . . But when a known, described, and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser, for a particular purpose, still, if the known, defined, and described thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.” In Leake on Contracts, 404, the same rule is stated thus: “If an order be given for the manufacture or sup
For reasons.indicated, the judgment is affirmed.
Petition for re-hearing by appellant overruled.