128 Ky. 308 | Ky. Ct. App. | 1908
Opinion op the Court by
Eeversing.
Appellee instituted this action against appellant, a corporation, upon an account for $1,273.45, the purchase price of a hill of shoes sold and delivered appellant, credited by the sum of $402.50, paid June 1, 1907. Appellant answered, denying that it owed $881,18, the balance of the account sued on; hut did not deny that it had received the goods. In the second paragraph it alleged that on the-- day of-, 1907, it purchased of appellee, by sample, the boots and shoes referred to in the petition; that at the time of the purchase appellee and its agent falsely and fraudulently represented to it that the boots and shoes were of the best quality, were made of leather and in a workmanlike manner, and of as good' quality as the sample shown appellant, which was ofleather; that it relied on this representation, and was thereby
In the case of Cook v. Gray, 2 Bush, 121, this court quoted with approval from the case of O’Bannon & Co. v. Rolfe & Bledsoe, 7 Dana, 320, as follows: “There is a material distinction, between a warranty of a chattel on an executed sale and a warranty that articles to he manufactured and delivered in future shall he of a particular quality. In the former ease the purchaser has the right to rely upon the warranty without examination or inspection of the article, and therefore may return the article or sue for the breach of warranty, or use it as a defense by way of recoupment ; whereas, in the latter case, if he should receive the article, he thereby furnishes conclusive evidence to the warrantor that the article is of the quality covenanted to he delivered.” The case of Gregg v. Woods, 3 Ky. Law Rep. 526, is one where the purchaser sued the seller of a horse for an alleged breach of warranty that the horse sold was gentle, safe, and a good harness horse; and also alleged the fraudulent concealment, hy the seller, of the unsoundness of the horse. The court.said, upon the first ground, that-it was not necessary for the plaintiff to show the defendant knew the horse was not sound, as he warranted him to he. “Nor was it necessary, in order to
In the case at bar it is admitted by appellee that appellant did not know, and could not have known, of the defects in' the boots and shoes 'sooner than it did discover them, which was in June, 1907, at which time it notified appellee thereof. . This may appear to the ordinary mind unreasonable, but nevertheless this appellee admits to be' true; and it may be that appellant could not have discovered that the boots and shoes were not of leather until after they had been' used
We are of the opinion that the lower court erred in sustaining the demurrer, and the judgment is reversed and remanded for further proceedings consistent herewith.