Appeal from Circuit Court, Knox County
McMillen and Hazen Co. Vs. Slusher
ACTION: Affirmed
Court of Appeals of Kentucky
SLUSHER et al.
Nov. 22, 1911

Action by the McMillen & Hazen Company against J. H. Slusher and T. J. Slusher. Judgment for plaintiff for less than the relief demanded, and it appeals. Affirmed.

Appellant, a mercantile corporation, of Knoxville, Tenn., sued the appellees, J. H. Slusher and T. J. Slusher, partners in the retail mercantile business in Knox county, Ky., upon an account of $236.52, and interest from January 1, 1909, for a bill of rubber shoes sold them in the latter part of the summer of 1908, and delivered October 14, 1908. Appellees filed an answer and counterclaim, which was later amended, wherein they admitted the purchase of the rubber goods at $236.52, but denied their liability therefor upon the grounds, as alleged, that appellant, in selling them the goods through its agent, Matlock, warranted them to be sound and of good merchantable quality, suited to the market in which appellees conducted business; that, in addition to so warranting the goods, appellant, through its agent, Matlock, agreed, if any of them should prove to be unsound and not of good merchantable quality, suited to appellees' trade, it would, upon appellees returning them, replace such returned goods with others of the quality represented by their agent in making the sale to appellees. It was further, in substance, alleged in the answer and counterclaim that, after receiving the goods, appellees began to sell them in the usual course of trade, but soon learned that such of them as they sold were unsound and worthless, upon discovering which fact they wrote, advising appellant of their worthlessness, offering to return them, and asking that appellant replace them with other rubber goods of the quality represented by their agent, Matlock, but that this letter was not answered by appellant, nor did it comply with its agreement to receive the unsound goods appellees offered to return, or to replace them with others of the quality represented by its agent, Matlock; that, following the writing of this letter, and after satisfying themselves that all of the goods were unsound, not of merchantable value, and unsuited for their trade, appellees boxed and returned them by railroad transportation to appellant at Knoxville, Tenn. The answer and counterclaim contained the further averments that in thus selling appellees the defective goods in question, and refusing to replace them with others of the quality contracted for by appellees, appellant committed a breach of the warranty made by its agent at the time of selling them the goods, whereby they were damaged in the sum of $250, for which they prayed judgment on their counterclaim. The averments of the answer and counterclaim were denied by reply, and the trial resulted in a verdict and judgment in appellant's favor for $21.10. Appellant, being dissatisfied with the judgment and refusal of the court to grant it a new trial, has appealed.


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