163 Ky. 702 | Ky. Ct. App. | 1915
Opinion of the Court by ‘
Affirming.
This is an action by plaintiff, L. P. Yandell, against defendants, Anderson & Spilman, to recover damages for an alleged breach of warranty in the sale of seed wheat. From a verdict and judgment in favor of the defendants plaintiff appeals.
Complaint is also made of instruction No. 5, which was given at the instance of the defendants, and is as follows:
“Although you may believe from the evidence that the defendants sold the wheat to plaintiff for the purpose of sowing same, yet, if you further believe from the evidence that the defendants, at the time or before plaintiff purchased the 231 bushels of wheat for seeding purposes in Boyle County, Kentucky, they or either of them told plaintiff that they knew nothing about the wheat, either as to its name or its kind, except what they were informed by Green & Company in respect to same, through the letters, telegrams and inspectors’ receipts received from Green & Company, and sold it alone upon the statements set out in this instruction, or their substance, there was in law no warranty as to said wheat, and the law is for the defendants, and you will so find.”
In addition to the above instruction, the court gave to the jury two instructions on express warranty and one instruction on implied warranty. It is insisted that instruction No. 5 was improper, not only because it nullified instruction No. 3 on implied warranty, but for the additional reason that it was not authorized by the pleading. While a warranty that seed are reasonably suitable for the purpose for which they are sold may be implied from the circumstances attending the sale, yet the facts under which the sale is made may be such as to repel this implication. This frequently happens where the purchaser and seller have equal means of knowledge as to the kind or fitness of the thing* for the purpose for
Lastly, it is insisted the court erred in refusing to permit plaintiff to prove the quantity of wheat raised by various farmers on land similar to his from homegrown seed other than Red Fultz wheat. It is insisted that this evidence was competent because defendants denied that they sold to plaintiff any particular kind of wheat, but admitted they did sell him winter wheat for seeding purposes. Whether or not the evidence was admissible we deem it unnecessary to determine. It is sufficient to say that the rejected evidence bore solely on the question of damages, and we have frequently held that error in rejecting evidence on the question of damages is not prejudicial where no damages are allowed.
Judgment affirmed.