National Oak Leather Co. v. Armour-Cudahy Packing Co., 99 Ky. 667

National Oak Leather Co. v. Armour-Cudahy Packing Co.

99 Ky. 667 | Ky. Ct. App. | 1896

JUDGE HAZELRIGG

delivered the opinion oe the court.

This suit was brought by the appellee to recover of the appellant a balance alleged to be due on the purchase of a car load of native steer hides, shipped from South Omaha, Nebraska, to the appellant at Louisville, Kentucky.

The defense interposed was that on a former shipment of similar hides, and which had been paid for before opportunity for inspection and in fact before receiving them, the appellant was entitled to some $186 in damages by reason of the hides being inferior in quality to that warranted by the appellee, and further that material defects existed in the hides last shipped, and for which the suit had been brought, to the damage of appellant in the sum of $282, and that on an adjustment of accounts the appellee owed appellant $117.30. Upon a trial of the issues formed by the pleadings the court, without the intervention of a jury, found for the appellant in the sum of its counterclaim, but subsequently reversed its rulings and entered judgment for the appellee in the total sum claimed.

*670This latter finding, however, was not because of a lack of proof showing the inferior quality of the hides, for of the first car the court said: “When the car reached the city of Louisville, while the hides were being fleshed and inspected and examined by the defendants, it was found that one of said hides was that of a work ox, worth two cents per pound less than the price charged; that eight were hides of bulls, worth two- and three-fourth cents per pound less than charged; that twelve were branded and worth one cent per pound less than chained; that 264 were badly cut and worth one cent per pound less than the price charged, and that said defects lessened the value of the car load of said hides by the sum of $186.40.”

And of the second car the court said: “Said hides were examined and inspected by defendant, and 358 of them were found unnecessarily dirty, long haired, of inferior quality and under weight.”

But the court finally denied the relief sought by the counterclaim, and to which the defendant had shown itself entitled by the proof, on the ground that “the defendant, by using the hides, accepted them,” and it could not, therefore, recover for defects alleged to have been found before they were used.

This is clearly the general doctrine, but in this case the appellant had paid the purchase price for the first car load of hides on the faith of the appellee’s warranty. The hides were received in the early part of July, 1889, and in due course went into the beam-house early in August. While in here the defects were noted. They could not have been discovered before in the ordinary run of the business. Notice of the defects was at once forwarded to appellee and damages demanded. The appellee responded in effect admit*671ting tlie inferior condition of the hides and promising- a better showing on the second car load.

It said: “We had much reason to- be dissatisfied with the take-off of our hides, and we have discharged the man who has been in charge of it. We have now one of the best men,” etc.

The claim for reclamation was not denied, and while there is no express promise to allow it, such a promise is easily inferable. In a few days, however, the second car arrived, and the hides were found in worse condition than the first. After a further correspondence and the payment of a considerable sum for expense of preserving the hides so that they might be of some value- to whomsoever might finally get them, the appellant agreed to deliver to the Ohio Falls Oak Leather Co., at the direction of the' appellee, all the hides except eighty, which it proposed to reserve to pay damages. This offer was refused. Finally, all plans of adjustment failing, and the appellee at no time tendering or offering to make good the admitted damages accruing to the appellant, and it becoming manifest that the hides were about to spoil, the appellant sent to the appellee the price of the hides as stipulated in the contract, less its claim for damages as stated, and proceeded to use them in order to save them.

Keeping in mind that the vendor was a non-resident and without property in the State, we are at a loss to see what the appellant could have done in this case other than what it did do. Certainly it was not required to1 reject the first car load and look to the non-resident vendor to pay back the purchase price. Moreover, as we have seen, it was a most natural conclusion from the letters of the appellee- that the claim for damages on that car load was admitted and would *672be paid or allowed on the nest settlement between the parties.

When sued for the price of the second load we perceive no-reason why this admitted claim should not be allowed. As. to the second load it may be conceded that ordinarily the vendee may not prescribe conditions on which he will return or surrender the goods, the quality of which, he asserts, does, not satisfy the contract, but- here the original claim was unpaid and other necessary expenses had been incurred, and certainly the vendee might at least retain the eighty -hides as indemnity for his loss. When he offered the balance toappellee the offer was refused, and we think no law required him then to let the whole or any part of his indemnity get out of his control or go to ruin.

The first judgment ought not to have been set aside, and the judgment appealed from is reversed to the end that the-original judgment may be re-entered.