194 Ky. 326 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
The Shady Grove Milling Company, a partnership composed of Towery, McConnell and Hubbard, sold a Midget flouring mill to appellant, Jack Vaughn, for $1,800.00, of which sum $800.00 was paid, and two notes for $500.00 each were executed by Vaughn to the company for the balance of the purchase price. When the first note became due Vaughn declined to pay it and suit was brought thereon by the company, but before 'a trial could be had the other note became due and another suit was brought on it against Vaughn; to the first suit he filed an answer and counterclaim in which he traversed certain material averments of -the petition, and averred that in making the sale of the mill to him the plaintiffs represented and warranted that said mill was in first class shape and condition, and that it would do everything a new Midget mill would do, and that it would make the same grade of flour, and as much flour to the bushel of wheat as the new Midget mill would make; that all the repairs it would need were replacement of the bolting cloths, and that all the said representations and warranties were false, but he, not knowing of this falsity, relied upon the representations. The two actions were consolidated and heard together. A trial resulted in a verdict on both notes in favor of the company, to which was added: “We find for defendant (Vaughn) the sum of $200.00 the cost of equipping said mill to make it come up to the contract.” Judgment being entered in accordance with the verdict Vaughn appeals, and asks a reversal of the judgment on the ground that the evidence offered by him as to the extent of his damages was uncontradicted; that the court’s instructions were equivalent to a direction to the jury to find for him the full amount thereof, and that the jury disregarded both the evidence and the instructions.
If the mill was defective and would not produce as many pounds of high- grade flour from a bushel of wheat as a new Midget mill produced, the warranty if made as contended by appellant Vaughn was broken and the milling company was liable in damages to Vaughn. He .had a right in his answer to set up his counterclaim for such damages. We think, however, that the measure of damages to which he was entitled did not include the loss which he incidentally suffered by reason of the mill making too much bran, nor can he have a recovery for the cost of the middling machine, or the sums expended by him in employing expert millwrights to correct the defects in the mill. The correct measure of damages is the difference between the flour mill in the condition in which it was delivered to. him and its value in the condition in which it was warranted to be. He chose by his conduct as well as his counterclaim to retain the mill and to sue for damages for breach of warranty. The defect in the mill which he charges to be a breach of the warranty is its failure to produce as many pounds of high class flour per bushel of wheat as a new Midget mill would produce under like conditions and circumstances. It, therefore, became a question of fact for the determination of the jury whether the mill as sold and delivered to appellant Vaughn was of less efficiency than it was warranted to be by the seller, and if so, of how much less value was the mill in the condi
Appellant was not entitled to a rescission of the contract for he did not offer to return the mill for many weeks, after he discovered its defective condition, if indeed he ever offered to return it. Church v. Wright Machine Co., 190 Ky. 561.
The trial court erred in its instructions to the jury, but this error was on the side of appellant Vaughn, and of this he cannot complain. The jury should not have been told that appellant Vaughn was entitled to recover for the loss which he says he sustained by reason of the excessive production of bran by the mill, or for expenses incurred in employing expert millwrights to repair the mill, nor for the cost of the middling machine, for all these things were incidental and too remote, but he was entitled to recover damiages in a lump sum for the difference in. the value of the machine which was sold and delivered to him, and the machine which they represented and war-, ranted it to be, and no more. Carson-Muse Lumber Co. v. Fairbanks, Morse & Company, 151 Ky. 404; Fairbanks, Morse & Company v. Hooper, 147 Ky. 154.
The evidence submitted to the jury was sufficient to warrant and sustain the verdict.
The judgment is therefore affirmed.