141 Ky. 676 | Ky. Ct. App. | 1911
Opinion of the Court by
Beversing.
Appellant, The S. Bose Company, a corporation, is engaged in the State of New York in the business of importing, buying and selling rough diamonds, carbon and bort, etc., for use for mechanical and scientific purposes. On March 7, 1908, it sold and delivered to appellee, William Hasenzahl, to be paid for in thirty days from said date, six stones of drill bort, weighing 7 7-32 carats, at $6.00 per carat, and five stones of carbon, weighing 5 1-2 carats, at $40.00 per carat, making a total of $263.31. Appellee declined to pay for the stones so purchased, and appellant brought this action to recover the purchase price. Appellee confessed judgment in the sum of $43.31, the agreed price of the six stones of drill bort, but entered a defense as to the balance of the account. A trial bv jury resulted in a verdict for appellee. From the judgment based thereon, this appeal is prosecuted.
It apnears from the record that the goods purchased by appellee were not only sold and delivered to him with
“IMPORTANT NOTICE. Carbon and all other diamonds being a natural formation, their temper being beyond human knowledge, it CAN NOT BE GUARANTEED. Our years of experience and facilities enable us to get the best quality the market affords. By returning them IMMEDIATELY all the goods will be exchanged, PROVIDED they have not been SET, TRIED OR BROKEN.”
Appellee does not contend that he was not aware of the above notice when the goods were delivered; on the contrary, he admits that the goods were sold under the terms above set out. To the petition, which is. in the usual form for goods sold and delivered at appellee's instance and request, appellee filed an answer containing three paragraphs. In the first paragraph he denied that appellee had sold and delivered to him any merchandise, at any time, of the value of $263.31, or of any value in excess of $13.31. For the purpose of overcoming the effect of the terms and conditions of non-guaranty upon which the goods were sold, he pleaded in the second paragraph that, unknown to him, appellant had doctored or manipulated the carbon by coating the same with paraffine or some other substance unknown to appellee, thereby concealing the true nature thereof and making it impossible for appellee to detect the defects or true nature thereof; that said carbon were defective and of poor quality; all of which was known to appellant, but that by reason of said coating it was impossible for appellee to detect the true nature and character of the same until the carbons were tried or used; that at the time he accepted the carbons he did not know that the same had been coated, but believed that they were in their natural state or formation, and had he known that the carbons had been coated or manipulated he would not have accepted the same. The third paragraph presented a counter-claim, which it is unnecessary to set forth, as the lower court sustained a demurrer thereto.
As appellant did not ask for a peremptory instruction, we refrain from passing upon tin? question whether or not there was any evidence justifying the submission of the case to the jury. It is, however, contended that the verdict of the jury is flagrantly against the evidence, land we shall now proceed to a consideration of that question.
Ferdinand Hasenzahl,'appellee’s son, testified that he had been employed for ten years by his father in the diamond drill business. Remembered receiving the five carbons and six borts which his father had sent him in March, 1908. After drilling about 12 feet with the carbons they broke like glass. Looked at the carbons before using them. They appeared to be natural stones and he
For appellant, Joseph S. Eose, the president and treasurer of the company, testified that his company was ló'cáted'in New York City. He sold the stones, for which suit was brought, to appellee. Appellee was to pay for them within thirty days. Appellee never made any complaint about the character , of the stones until the claim was turned over to an attorney for collection. Neither appellee nor any member of his firm ever did anything to the stones to'manipulate them or in any way change them or any of them, from their natural state. The stones were in the best of condition and there was absolutely nothing the matter with them. They were in exactly the same condition as when received from the Diamond Drill Carbon Company, from whom they were purchased. The stones were not coated with paraffine or any other substance.
Adolph Hirsch, president of the Diamond Drill Carbon Company, testified that he knew Joseph S. Eose. He delivered to Eose, in February 1908, sixteen stones of carbon. The carbons were of good quality, and were not in any way covered with foreign substance or doctored or manipulated in any manner.
In the case before us, appellee bought the carbons with the distinct understanding that they were not guaranteed. Upon examining them he had the right to return them immediately and exchange them for other carbons; if, however, the carbons were set, broken or tried, he lost this right. The carbons in question were set, tried and broken. Realizing that he had thus forfeited his right to return the goods, he sought to overcome the effect of the terms of sale by charging that the stones had been, doctored in such a way as to prevent him from detecting their defectiveness. Neither he nor his son is able to state that the carbons were doctored; they predicate their whole defense on the inference deducible from the fact that the stones were defective and the defects would have been discovered had it not been that the stones were doctored. To reach this conclusion they first proved that the stones were defective, against which there was no guaranty, and used this fact as the basis of their conclusion that the stones were covered with paraffine or some other substance calculated to deceive. It would signify such a conclusion by calling it anything more than a mere conjecture. Opposed to this evidence, if it may be called such, is the sworn statement of appellant’s president and of the president of the Diamond Drill Carbon Company, from whom the carbons were purchased, that •the carbons were not doctored or coated with any foreign substance. This, in our opinion, is sufficient to overcome
No other questions are passed upon.
Judgment reversed and cause remanded for a new trial consistent with this opinion.