195 Ky. 536 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
The appellees, Sigmund Glaser & Company, a wholesale dry goods concern of St. Louis Missouri, sold to Khourie Brothers, a retail firm of Fulton, Kentucky, a bill of spring goods amounting to $669.29, in the fall of 1919, to be delivered in the spring of 1920. The bill having fallen due and being unpaid the appellee company brought suit in the Fulton circuit court to recover the price. The appellant company answered and admitted the purchase of the goods but averred that after they were received and placed on their shelves and part of them had been sold, they discovered for the first time that said goods were old, defective and unsuited for their trade, and not the kind of goods which they had ordered from the appellee company. They further averred that a quantity of the goods amounting to $395.00, were boxed and returned to the plaintiff company. However, they were not received and accepted by that company but were returned to the defendants; that defendants refused to accept said goods and left them in the depot of the railroad company for some time and until an agreement was made with counsel for the plaintiff company whereby the defendants removed the goods from the depot in order to save storage charges, but that said goods were held for the use and benefit of the plaintiff company. For counterclaim the defendants averred that their trade had been injuriously affected and that they lost business to their damage in the sum of $110.00. Issue being joined a trial was had resulting in a verdict in favor of the appellees, Sigmund Glaser & 'Company, etc., for $669.29, the full amount of their claim, and Khourie Brothers appealed.
Appellants rely upon three grounds for a reversal of the judgment: (1) the court erred in refusing to allow the defendants to file an amended answer, .set-off or counterclaim offered; (2) the court erred on the trial of the
While it appears that appellant, Khourie Brothers, returned a portion of the goods to appellee company, this was done several months after the delivery of the goods and the same had been placed on the shelves of the retailer and offered for sale and after the retailers had sent a letter to the wholesaler acknowledging their indebtednes for the entire bill of goods and begging the indulgence of the wholesale firm on account of the inactive condition of the mercantile business in and around Fulton. It further appears that no notice whatever was given by appellants to appellees of the defective or unsatisfactory condition of the goods before the same were returned nor of the fact that appellants intended to return a part or all of said goods.
Under the facts of this case the peremptory instruction to the jury to find and return a verdict for the plaintiffs, Sigmund Glaser & Company, was not error, and the judgment is affirmed.
Judgment affirmed.