91 Ky. 373 | Ky. Ct. App. | 1891
delivered the opinion of The court.
The appellants, grain and commission merchants of Winchester, purchased of the appellee, engaged in the same general business at Pine Grove and Colby stations, on the Chesapeake and Ohio Railroad, all the wheat that the appellee" had engaged in the vicinity of these stations, which was to be delivered at said stations in car-load lots, and to grade No. 2 wheat. The appellee delivered said wheat at said stations, .and it was there received by the appellants, and they personally inspected a part of the same as it was delivered, and pronounced it all right. They caused the wheat to be shipped to Newport News, the place of destination, where it was inspected and pronounced, at least a part of it, not No. 2 wheat in that market. The appellee sued the appellants for a balance of the purchase money, to which they pleaded as counter
The question as to whether at the terminal place or that of delivery the wheat was to grade No. 2, having been passed upon by the jury, and they having decided from the evidence that the grade was to be at the place of delivery, we must regard that fact, for the purpose of this review, as settled. So the question arises, conceding that the wheat did not grade No. 2 at the place of delivery, did the reception of it by the appellants, at the place of delivery, after having inspected it, or after having had a fair opportunity to inspect it, satisfy the terms of the contract to deliver wheat of No. 2 grade.
This court, in the cases of Dana v. Boyd, 2 J. J. M., 594; O’Bannon v. Relf, 7 Dana, 320; Kerr v. Smith, 5 B. M., 553 (which have been subsequently evidently approved by this court in a number of cases; also, Benjamin on Sales, the text, 4th ed., see sec. 600 to 609) has held that where there is a contract to deliver goods or chattels of a particular description or quality, at a future day, and the vendor tenders goods not of the agreed description or quality
It is true there are many States that hold such stipulations to be warranties, and that fact was doubtless known to the members of this court at the time the decisions mentioned were rendered; but nevertheless, they chose to hew out the more equitable rule, regardless of those high opposing authorities. Besides, as there is scarcely any uniformity of decision among the several States upon the same subject, many sometimes deciding one way and only a few the other, if
The judgment is affirmed.