133 Ky. 118 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
Plaintiff Blue Grass Canning Company instituted this action against defendants, L. & J. A. Stewart, to recover the sum of $789.95 as damages for breach of warrants. The jury returned a verdict in favor of plaintiff for $627.90. The defendants moved for a judgment notwithstanding the verdict, and also filed grounds for a new trial. These motions were
The Blue Grass Canning Company was a corporation engaged in the business of canning fruits and vegetables at Owensboro; Ky. The defendants, L. & J. A. Stewart, were manufacturers of tin cans for canning fruits and vegetables. Their place of business was 'at Rutland, Vt. The basis of plaintiff’s-claim was that in February, 1903, it made an agreement with the defendants whereby the latter undertook to furnish it as many as 100,000 cans and 50,-000 more if it elected to take such additional quantity. At the time of the purchase it was agreed that the cans were to be so manufactured as to exclude the ■air therefrom, and preserve the contents of the cans if the tomatoes were properly processed. The defendants defended on the ground that the contract executed between the parties was in writing and con • tained the whole contract. This contract is as follows :
“Washington, D. C., Feb. 15, 1903.
“Order No.-.
“L. & J. A. Stewart.
“Ship to the'Blue Grass Can. Co.
“At Owensboro.
“How ship — By freight. When — June 13th.
“Terms: Sight draft, bill of lading attached.
“50 M. 3 lb. cans, 21.50.
“Seamer furnished free of rent but to be returned at end of season, or to be paid for at $400.00 their option. Guarantee the cans against leaks caused by leaks in manufacture all above 2 to the thousand.'
“L. & J. A. Stewart,
“Blue Grass Canning Co., Inc.,
“By J. Ed. Guenther, Pres’t.’’
By amended petition the plaintiff charged that this contract was executed by mistake. Under the circumstances it was proper to admit testimony to vary the terms of the written agreement. During the pro
Some point is made of the duty of plaintiff to return the cans purchased of defendants immediately, or to make complaint of their imperfection. According to the testimony for plaintiff, however, the defects were latent, and the effect upon the tomatoes could not be shown until they were placed in the cans and time- allowed for the fermentation process to take place. Under this state of facts we would not .hold, as a matter of law, that plaintiff was estopped to recover damages because it retained the cans and made use of them. Summers Fiber Co. v. Walker, 109 S. W. 883, 33 Ky. Law Rep. 153.
In the court’s instructions the question whether the writing filed with defendants ’ answer constituted the whole contract, or whether the contract was as claimed by plaintiff, fairly submitted to the jury. In case the written contract contained the whole contract, the instructions authorized a recovery for loss by leakage of cans from defective manufacture above two in a thousand, and in case the jury believed the paper of February 15,1903, did not contain the whole contract between the parties, -then a recovery was
There was. a sharp conflict in the evidence as to whether the damages resulted from insufficient sterilization on the part of the plaintiff or from the alleged defects in the cans furnished by the defendants; but there was abundant evidence upon which to submit plaintiff’s theory of the case to the jury, and we are unable to say that the jury’s verdict was flagrantly-against the evidence. As this was a common law action .for damages, we fail to see any necessity for the court’s order transferring the case to equity. This action, however, was not prejudicial to the defendants, for it in reality afforded them a retrial of the case by the chancellor, who reached the same conclusion as the jury.
The court did not err in overruling defendants’ motion for a judgment notwithstanding the verdict. While plaintiff filed a number of amendments in an effort to state a cause of action, we are of the opinion that the petition and the various amendments thereto, do state a cause of action, -and amply sustain and support the verdict. But it is insisted that the attachment obtained in this action is void; it' being argued that, under the Code, an attachment cannot be obtained until the suit is commenced, and that suit is not commenced until it is filed and process issued, or, in the case of nonresidents, a warning order is
But it is earnestly insisted that an attachment does not lie in this case because the damages sought to be recovered are unliquidated, and the contract furnishes no measure nor standard for ascertaining them; but resort must be had to extrinsic facts or circumstances. In support of this position we are cited
It may be conceded that there were a number of' irregularities in the proceedings in this case. To consider all the errors alleged to have been committed would extend this opinion to too great length. Suffice it to say that we have carefully considered the whole record, and are of opinion that none of the errors relied upon as grounds for reversal were prejudicial to the substantial rights of appellant.
Wherefore the judgment is affirmed.