Jones Bros. v. McEwan
Court of Appeals of Kentucky
Case 71 — PETITION ORDINARY — APPEAL PROM CLARK COURT OP COMMON PLEAS. An express warranty in sales of personal property is never conclusively waived by any acceptance of the goods, unless, perchance, in some cases of known defects. A waiver may arise as a presumption of facts, but never as a conclusive presumption of law.
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Case 71 — PETITION ORDINARY — APPEAL PROM CLARK COURT OP COMMON PLEAS. An express warranty in sales of personal property is never conclusively waived by any acceptance of the goods, unless, perchance, in some cases of known defects. A waiver may arise as a presumption of facts, but never as a conclusive presumption of law. Indeed, an action for damages for breach of the warranty can not be brought until there has been an acceptance of the goods and an affirmance of the contract. (McKibben v. Bakers, 1 B. M., 120; Benjamin on Sales (Bennett’s ed., 1888), pages 606, 607, 853; Smith’s Mercantile…
1Opinion of the Court
JUDGE BENNETT
delivered the opinion of The court.
The appellants, grain and commission merchants of Winchester, purchased of the appellee, engaged in the same general business at Pine Grove and Colby stations, on the Chesapeake and Ohio Railroad, all the wheat that the appellee" had engaged in the vicinity of these stations, which was to be delivered at said stations in car-load lots, and to grade No. 2 wheat. The appellee delivered said wheat at said stations, .and it was there received by the appellants, and they personally inspected a part of the same as it was delivered, and pronounced it…
2Cases cited1 opinion
- O'Bannon & Co. v. Relf & BledsoeCourt of Appeals of Kentucky · 1838
3Cited by18 opinions
- Florida Athletic Club v. Hope Lumber Co.Court of Appeals of Texas · 1898
- Atkins Brothers Co. v. Southern Grain Co.Missouri Court of Appeals · 1906
- Louisville Point Lumber Co. v. ThompsonCourt of Appeals of Kentucky · 1924
- T. H. Rogers Lumber Co. v. M. W. Judd Lumber Co.Supreme Court of Oklahoma · 1915
- Courtesy Flour Co. v. WestbrookSupreme Court of Arkansas · 1920
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