37 Ky. 320 | Ky. Ct. App. | 1838
Rehearing
Petition for a Re-hearing.
june 22.
The counsel for the plaintiffs in error earnestly desires a re-hearing of this case.
This is an action of covenant, founded upon an agreement under the seal of the parties thereto, wherein the plaintiffs in error agree to purchase from Relf and Bled-soe, all the bagging and bale-rope which said Relf and Bledsoe had then, at the date of said agreement, on hand, that is, on the 7th of April, 1835, and all which they might manufacture from said day until the 1st day of October, 1835, at the rate of twenty seven cents per yard for bagging, and six and a half cents per pound for bale-rope; O’Bannon and Bradshaw agreeing to pay, on
I have thought proper to state, with some particularity, the true character of the case, and to recite the opinion of the Court upon it. I am convinced that no case has recently, if ever, been brought within the investigation of this Court, and its attendant lawyers, which required closer examination and scrutiny than this very case. The manufacturing, commercial, and all the solid interests of the Commonwealth, depend upon the principles and rules of law to be established in this case. The attendant attorneys of the Court, and the Court itself, if it were possible, might have acquired additional and increased reputation by extracting from the appropriate authorities, the true principles which should govern it. Yet, the attorneys for the defendants describe it as an action of assumpsit; and the Court, in its opinion, suggests defects in -the declaration, which, it appears to the undersigned, will require a new form of declaring in actions of covenant. I know of no exception to the rule, that, in a case like the present, after setting out the contract, only requires of the plaintiff to assign breaches in the words of the covenant sued on. The defendants, by their written covenant, bound themselves to deliver to the plaintiffs, bagging of a certain quality. The plaintiffs say the bagging delivered was not of the quality stipulated, but was of a contrary quality. To this declaration, the defendants demur, thereby confessing that they had broken their covenant, as is alleged. Upon the whole declaration, say the Court, the presumption is, that the acceptance was a discharge of the defendants’ covenant. The discharge of,the defendants’ covenant, by the act of the plaintiffs, is a fact to be pleadfe(A and proved. This Court cannot presume it. The defendants have not plead a discharge, yet the Court presume it from the declaration of the plaintiffs! Does the Court mean that, by accepting the bagging, the plaintiffs lost, by operation of law, their right to recover from the defendants, in this case? This position stands rebuked.
Goods sold by sample is one mode of warranty. Yet in the case of Yates vs. Penn, referred to in Comyn on Contracts, p. 112, the plaintiffs, who brought their actio'n on the warranty, recovered, although they had on two occasions inspected the bacon purchased by them, and made no objection, and claimed no allowance for spoiled bacon, and afterwards accepted and paid the bills drawn upon them for the price.
The purchaser of a warranted article has a right to
Is not the agreement alleged to be broken, an express warranty? To create an express warranty, the word warranty need not be used, nor is any precise form of expression required; any affirmation of the quality of the thing sold, amounts to a warranty. Will this Court reverse long-established principles, and deprive these merchants — the plaintiffs in this writ of error — of the benefit of the warranty, contained in the agreement of sale, and by which they were induced to purchase of the defendants, their bagging and bale-rope. The plaintiffs, before they would agree to buy of the defendants, and accept their fabrics, required them to stipulate that it should be of a certain quality — that it should be “good, heavy and merchantable.” It is received, from time to time, as manufactured, from April to October, sent to the south, and is found to be unmerchantable; and be
The Court, in this, confounds with the present case, those cases where the purchaser brings his action to recover the price paid, or defends the suit of the vendor for the purchase-money, thereby seeking a rescission of the contract, which is only allowable in cases of implied warranties. When there is an express warranty, the doctrine is, that, where the property in the specific chattel, has passed to the vendor, and the price has been paid, he has no right, upon the breach of warranty, to return the article, and revest the property in the vendor, and recover the price as money paid on' a consideration which has failed; but must sue on his warranty, unless there has been a condition in the contract authorizing the return, or the vendor has consented to rescind the contract. 1 Doug. 23, Towers vs. Barrel, 1 T. R. 133. See note, Chitty on Contracts, 138-9. I repeat, the record shows a breach of the defendants’ covenant: will' the
James C. Sprigg, Attorney for plaintiffs.
October 27.
The re-hearing was granted, and the case was again submitted, and reconsidered at the present term; but no change was made in the decision. The Court, in announcing this determination, added the following remarks to the former opinion:—
In support of this opinion, after a re-argument of this case, we deem it necessary only to refer to the opinion of this Court in the case of Dana vs. Boyd, 2 J. J. Marsh. 593-4; and to state that there seems to be a distinction, not sufficiently regarded by the counsel for the plaintiffs, between a warranty upon an executed sale of a chattel, and a covenant in an executory contract, that articles to be manufactured and delivered at a future day, should be of a certain description or quality.
Lead Opinion
announced the decision of this Court, as follows:—
As the declaration shows that the bagging was ac-oepted by the plaintiffs, and does not show, either that they had no opportunity of inspecting it at the time of delivery, or that they did not then know, or might not, from the nature of the goods and of the transaction, have known of the defects now alleged, by reasonable ¿Lili-gence; and as it does not show when the defects were discovered, nor that, when discovered, the defendants were notified, or the return of the goods tendered, nor any reason why this was not done — we are of opinion that, upon the whole declaration, the presumption is, that the acceptance was a discharge of the defendants’ covenant; and, therefore, that no cause of action is shown.
Wherefore, the judgment for the defendants, on their demurrer to the declaration, is affirmed.