117 Ky. 450 | Ky. Ct. App. | 1904
Opinion op the court by
JUDGE HOBSON
Reversing.
Appellee, the Knoxville Woolen Mills, instituted this action against appellants to recover $2,712.39, the balance due on an account for a lot of cotton yam sold and delivered by it to them; appellee being a manufacturer of yarn in Knoxville, Tenn., and appellants being manufacturers of hosiery at Paducah, Ky., and buying the yam for use in their factory. After the suit was brought', appellants paid appellee $2,015.05 on the account, and filed an answer and ¡counterclaim as to the remainder of the account, in which they alleged these facts: They have a large plant, employing regularly about 100 persons, and a great number of machines engaged in the manufacture of hosiery, their weekly expenses
“Knoxville, Tenn., Nov. 3rd, 1902.
“The Alden Knitting Mills, Paducah, Ky.
Gentlemen: — Yours of the first inst. received. I regret exceedingly that our yarns have not been giving satisfaction. This is the first complaint we have had for some time, but the samples of yarn you submitted is certainly not very good. In one place it looks like a No. 6 had been ■wound on to No. 11 or No. 12s. And in another place, especially that of the knit sample, it looks like it had been caused by a bad roller in the cotton mill.
“Our Mr. McKeldin wrote you last Saturday that he hopes to be over early this week. He expects to leave to-night*454 or to-morrow night, and I hope yon will have no trouble in getting our differences reconciled, and our business relations continue pleasant. We know we can make good yarn, and are doing it to-day.
“I have the pleasure of knowing your Mr. Toof, and am obliged to him for his interest in the matter. I assure you, when our Mr. McKeldin sees you, he will make everything satisfactory.
Yery truly yours,
“(Signed) R. P. Gettys, Y. P.”
The officer of the plaintiff came to Paducah in a few days, and admitted that the yarns were not of the character, quality, and kind contracted to be shipped, and represented to defendants that he would undertake to adjust the claim •for damages made by the defendants. By reason of the representations of the plaintiff, the defendant's were kept from making other contracts for the purchase of good yarn for their knitting, as they would have done but for this misrepresentation. There is no market in the city of Paducah for the purchase of yarns. The defendants made every effort to procure yarns for use in their plant when they ascertained that plaintiff would not comply with its contract. They would .not have used the yarn shipped by plaintiff, but for the representations of the plaintiff that it would make good yarns to comply with its contract, and that the defendants would be compensated! for damages by reason of the defective character of the yarns. It was further alleged that the plaintiff made these representations 'to the defendants with a fraudulent intent to mislead them, and to induce them to keep and use the portion of said yarns that were used, and to prevent them from exercising their rights under the contract, and that thereby the plaintiff practiced a fraud upon them, and lulled them into the belief that their claim for dam
in'support of the judgment, w'e are referred to Jones v. McEwan, 91 Ky., 373; 12 R., 966; 16 S. W., 81; 12 L. R. A., 399, and Duckwall v. Brooke (23 R., 1459) 65 S. W., 357. In the first case the wheat was inspected and received, and thereafter a counterclaim was presented on the idea that the wheat was not as it was supposed to be. The court applied the rule that where the purchaser receives the goods in discharge of the contract after inspecting them, or after a fair opportunity to do> so, he can not Sue the ■vendor to recover damages upon the ground that the goods did not come up to the contract. In the second case, five carloads of corn were shipped. Two were rejected, and three were risked out. Two other cars were sent in the place of the two that "were rejected, and it was held that the purchaser took the risk of the three which he sent out after inspecting them and knowing the condition of the corn. This case followed Jones v. McEwan, and is-on all fours with it. On the other hand, in National Oak Leather Company v. Armour-Cudahy Packing Company, 99 Ky., 667; 18 R., 497; 37 S. W., 81, suit was brought to recover the price -of certain hides, and a counterclaim was pleaded for damages on account of their defective condition. The defendant paid for the first car load! of hides before they were received, and the defective condition of the hides was discovered while they were being fleshed. They were received in July, and the defects were discovered in the beamhouse
The first shipment of the yarn sued for was made October 1st. The last shipment was made on November 12th. The yarn was rolled on cones, and its condition could not be ascertained until the cones would be unwound. In the ordinary course of business, this would be when the cones were placed in the machines, and the yarn was' unwound for use. The rule relied on for appellee applies only to such things as may be inspected in the ordinary course of ■business before they are accepted. It does not apply to defects which could not be discovered by ordinary care in the usual course of business when tihe goods are received. 'When appellants received the yarn in contest, they had a right to presume that it was such as the contract required, and were not required to anticipate defects which could not be ascertained by ordinary care, in the usual course of business, before using the yarn. Complaint having been
In setting out their damages, the defendants' alleged that by reason of the defective quality of the yarn their machinery was damaged in passing the yarn through it in the sum of $200; that they were further damaged by reason of their inability to do full work with their machinery, on account of the yams being defective, in .the sum of $450; and that by reason of the failure of the plaintiff to deliver the yarns of the quality, character, and kind contracted to be- furnished, they were damaged in the sum of $200. It is earnestly argued for appellee that the damages to the machinery, or by reason of appellee’s failure to do full work with the machinery are so remote, and that the other item of damage is vague and indefinite, that it should be disregarded. Ordinarily the measure of damages on the sale of a chattel is the difference in value between the article contracted for and that delivered. But where an article is sold for a particular purpose the purchaser may be entitled to recover such- special damages as may be considered within the reasonable contemplation of the parties as the natural and probable result of the breach of the contract, it being the duty of the purchaser to make his damages as small as he can by the exercise of ordinary care. 24 Am. & Eng. Ency. of Law, pp. 1155, 1156. The yam sued for was sold to the defendants to be manufactured in their plant into hosiery. The measure of damages is the difference in value of the yam for the purposes for which it was bought as it was contracted to be delivered, and the yarn as it in fadt was; and, in
Judgment reversed and cause remanded for further proceedings consistent herewith.