137 Ky. 308 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
fendants state that the note and mortgage sought to he enforced in this action were executed and delivered to the plaintiff for, and in, consideration of a two-horse wagon, a horse, and a mule constituting a team, under the following warranty, representations, and contract on the part of the plaintiff, which were accepted and relied on by them, viz.: The defendant Lloyd Sapp had been during the winter of 1908 and the spring of 1908, up to the 28th day of March, engaged in buying timber and cutting same into sawlogs in Ohio county, several miles from the railroad at Fordsville, and at said date, viz., March 28, 1908, defendant Lloyd Sapp was in great need of a team with which to haul his logs to the railroad so as to ship them to Owensboro, where he had engaged with the Owensboro Shovel & Tool Company to sell all the logs he could deliver them at $17.50 per 1,000 feet. He sought the plaintiff, and told him of his contract with said Owensboro Shovel & Tool Company to sell and deliver logs to it at the price of $17.50 per 1,000 feet in as great a quantity as he could deliver them, and that he had on hand in the woods several miles from the railroad at Fords-ville in Ohio county a considerable number of said logs already cut, and proposed to cut a large quan
Appellee demurred to so much of the answer and counterclaim as pleaded the $300 alleged profits and $100 alleged to have been spent in hiring teams, because same did not present a defense or counterclaim. The court sustained the demurrer, and appellants declined to plead further. Appellee filed a reply, and denied that he warranted the horse to be sound and all right, or that he made any warranty respecting the horse, and denied that the horse was diseased at the date of the sale to appellants ; denied that he had any knowledge or informa
We recognize the general rule to be that in case of a breach of warranty the criterion of recovery is the difference in value between the article as delivered and the article as warranted. To this, however, may be added such special damages as are the natural and proximate consequences of the breach. Tbe case at bar comes within the exception to the general rule. Appellee must have contemplated that at the time he sold and warranted the horse, if it
For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.