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authority when he made such warranty, and We have carefully examined the record, the appellants had the right to rely upon said and we find no reason for disturbing the warranty in the purchase of said seed. God judgment entered by the lower court, in so shaw v. J. N. Struck & Bro., 109 Ky. 285, 58 far as it awards appellee Siddens damages S. W. 781, 22 Ky. Law Rep. 820, 51 L. R. A. in the sum of $1,000 against appellants Hob668; 21 R. C. L. p. 854; 2 C. J. p. 832. dy & Read, but that part of the judgment

[5] It is also a well-recognized principle dismissing appellants' cross-petition against that a sale of seed by name raises an implied the National Seed Company must be reversed. warranty that it is true to name, and the On a return of the case to the lower court, fact that the buyer inspected it before buy- it will set aside that part of the judgment ing is immaterial when its character could dismissing the cross-petition against the Nanot ordinarily be ascertained by a reason- tional Seed Company, and enter in lieu thereable inspection. Grafton-Stamps Drug Co. v. of a judgment in favor of appellants, Hobdy Williams, 105 Miss. 296, 62 South. 273, citing & Read, against the National Seed Company, note in 37 L. R. A. (N. S.) 79; L. R. A. 1916C, for the sum of $1,000 and interest, and costs. 1012. So, where a certain variety of seed for For the reasons indicated, the judgment seeding is called for, and seed is furnished is affirmed in part and reversed in part. in response to such a call, there is a warranty that it is true to the description unless the seller advises the purchaser that the sale is made without warranty. Ross v. Northup, MOSS JELLICO COAL CO. v. AMERICAN K. & Co. (1914) 156 Wis. 327, 144 N. W. 1124.

RY. EXPRESS CO. [6] It is clearly shown that the seed which the National Seed Company sold to appel- (Court of Appeals of Kentucky. March 9, lants was the same which appellants sold to

1923.) appellee Siddens. It therefore appears that 1. Damages m5_"General damages" and the appellee National Seed Company did not "special damages" defined. furnish to appellants, Hobdy & Read, the "General damages" are such as the law character of seed which it sold them, and presumes from the wrong complained of, and which it warranted to be big-headed German such as naturally and necessarily result theremillet, suitable for sowing. The warranty from; while “special damages" are such as was therefore broken, and appellants, Hobdy result from the commission of the wrong, & Read, were entitled to recover of appellee but are not such a necessary result that they National Seed Company at least as great an

will be implied by law, or will be deemed to amount as that which the appellee Siddens have been within the contemplation of the

parties, and they always grow out of an unrecovered of appellants.

usual or peculiar state of facts, which may Sutherland, in his work on Damages, states be known to one of the parties and not to the the doctrine in this way:

other. "Where seeds are sold with a warranty that [Ed. Note.-For other definitions, see Words they are of a kind identified by a particular and Phrases, First and Second Series, Genname, with notice that the purchaser intends eral Damages; Special Damages.) to sell them again to persons who will purchase

2. Carriers en 135—Notice mine could not for the purpose of sowing them, if the warranty is untrue, there seems to be no difference in

operate until machine parts received warprinciple as to the subject of damages between

rants recovery against express company for such a sale and one with such warranty, where

lost profits during delay. the purchaser is known to buy for the purpose

Notice to an express company that the of sowing them himself. The warranty to one shipper's mining plant could not be operated buying seed to sell again justifies him in war- without the machinery shipped for repairs, ranting it accordingly to his customers, and without notice or knowledge that the plant as they have recourse to him for damages es

would be operated, except for the lack of that timated by the standard mentioned in the first machinery, or that it could be operated at a paragraphs of the preceding section, that is also profit, is insufficient to charge the express the measure of his loss as against his vendor.” company with liability for the loss of profits

from the mine as special damages resulting The liability incurred by the vendee to the from the loss of the machinery in shipment. subvendee upon a like warranty to that given 3. Carriers Cw135-Notice of special damages to the vendee by his vendor, enables the ven must bring peculiar facts to knowledge of dee to recover damages on that liability from

other person. the vendor. Randall v. Raper, El., Bl. & El. To make notice of the special circum84, 27 L. J. Q. B. N. S. 266, 6 Week. Rep. stances sufficient to authorize recovery from 445; Ellison & Co. v. Johnson & Co., 74 S. c. a carrier for special damages, there must be 202, 54 S. E. 202, 5 L. R. A. (N. S.) 1151 ; 3 imparted to the carrier information of such Sutherland on Damages, supra; Passinger v. facts and conditions known to the shipper,

facts as will bring home to him the peculiar Thorburn, 34 N. Y. 634; Buckhee v. Hohena- which will entail on him a loss not ordinarily del Co., 224 Fed. 14, 139 C. C. A. 478, L. R. A. within the contemplation of the parties, if the 1916C, 1001.

shipment is lost.

urbing

judet

(248 S.W.) Appeal from Circuit Court, Whitley County. s operations on the following Monday, the Action by the Moss Jellico Coal Company for which the piece of machinery was being

21st; that defendant well knew the purpose against the American Railway Express Company to recover general and special damages tiff could not resume its operations, and could

sent to Knoxville, and well knew that plainfor pondelivery of a shipment. Judgment for plaintif for general damages only, and

not operate its plant, without the piece of plaintiff appeals. Affirmed.

machinery. In ap amended petition it was

alleged that defendant, through its agent, Stephens & Steely, of Williamsburg, for was familiar with the piece of machinery, juder appellant.

and knew plaintiff's mine could not operate Tye & Siler, of Williamsburg, for appellee. without same at the time of the delivery,

and knew same was a necessary part of the TURNER, C. On and prior to the 18th of engine, and that the engine could not be October, 1918, appellant was operating a

operated without it, and that the mines of coal mine at Wofford, in Whitley county. plaintiff could not be operated without the The mine was operated almost wholly by engine of plaintiff could run, and they notielectrical appliances, and the power, was

fied defendants of these facts. These things furnished by an electric plant owned by the were all put in issue. mining company. On the morning of the

The evidence of plaintiff's agent, Wallace, 18th of October it was ascertained that an

who delivered the piece of machinery at the NERINI

essential part of the machinery of the elec- station, is that he had no particular talk tric plant needed repairing, and it was

with the express agent at the time as to what deemed necessary to take this piece of ma

was to be done with the machinery, but he chinery out for that purpose. This necessi- did tell him he wanted it sent that evening, tated the shutting down of the whole mining so it would get to Knoxville, and that witoperation.

ness was going to follow it the next morning Accordingly the piece of machinery was

and have it repaired; that he did not taken out and carried to the express office at remember of having any discussion with the the station nearby, and there shipped to express agent as to whether the mine could Knoxville

, Tenn., for the purpose of repair. operate without this machinery, but he told An agent of appellant next morning follow him he wanted it sent to Knoxville to be ed the shipment to Knoxville and found the fixed, so that they might operate the mine on bill of lading in the express office, but the Monday. The express agent stated, in subpiece of machinery could not then be found, stance, that Wallace told him the mine could and has never been found. Some days not run until the machinery was fixed and later, when it became apparent this piece returned, and the statements of these two could not be located, appellant ordered a witnesses constitute the whole evidence of new piece of machinery in its place. By the knowledge or notice upon the part of the time the new piece of machinery had been express company or its agent. received and installed, appellant's mining The allegation as to the knowledge of the operations had been shut down for 18 days, express company is that it knew plaintiff and this is an action by it against the could not operate its plant without this piece express company for the value of the lost of machinery, and knew the same piece of machinery, as well as for the profits necessary part of the engine, and the allegaclaimed to have been lost by it during the 18 tion of notice in the amendment is in subdays it was shut down by reason of its loss. stance that the agent was notified of the

At the close of the evidence the lower court same things he had already been charged directed a verdict for the plaintiff for the with having knowledge of. In other words, value of the lost machinery, but declined to he was given, at the time, notice of the same submit to the jury any instruction author- things of which he already had knowledge. izing the recovery for the special damages Because of our opinion that under the eyisought, and directed a verdict, as to them, for dence no such knowledge or notice has been the defendant. The plaintiff has appealed, brought home to the company, through its and the only question involved is the correct- agent, as justified the submission of the case ness of the ruling of the court on the questo the jury on the question of special tion of special damages.

damages, we shall not go into a technical The 18th day of October, 1918, was on analysis of the sufficiency of this pleading on Friday, and it is alleged in the petition that that issue. plaintiff that day delivered the piece of ma

[1] General damages are such as the law chinery to defendant, advising it and its presumes from the wrong complained of, and agent at the time that one of plaintiff's em- such as naturally and necessarily result there ployés would follow the shipment next morn- from; while special damages are such as Ing to Knoxville, where previous arrange result from the commission of the wrong, but ments had been made to have the same re are not such a necessary result that they will paired on Saturday, the 19th, so that the be implied by law, or will be deemed to have plaintiff's plant could and would resume been within the contemplation of the parties.

was a

Special damages, while resulting from the, there were no cars in which to load the coal wrong or the breach of a contract, always produced. That condition, so far as this grow out of an unusual or peculiar state of record discloses, might have continued in. facts, which may be known to one of the definitely, and for that reason the plant parties and not to the other.

would not have been operated, if the ma. [2] The leading case on the question of chinery had been promply delivered and respecial damages is the English case of Hadley paired. v. Baxendale, 9 Exch. 341. That case has A carrier, in possession of the facts and been very generally followed by the courts circumstances which disclose to it a state of of America and has been extensively quoted case making certain, or even probable, special from and approved. There, as in this case, damages to the shipper, would doubtless a piece of machinery was delivered to a make a greater effort, and take more care in carrier and the carrier's agent was told that the prompt delivery of a shipment than it the operation of the mill was stopped on ac-would where it had no reason to expect such count of this piece of machinery, and that damage. There is no presumption that a plant same must be promptly delivered, and if nec- is operating at a profit at any particular time; essary, to make a special entry to hasten its such things, from their nature, can only be delivery. The delivery was delayed, whereby known to those in charge of the business. the operation of the mill was further delayed, Justice and fair dealing require that, and the action sought the recovery of special when you expect to recover from a carrier damages in the form of lost profits during this damages of this nature, which are not delay. In that case the only circumstances apparent upon the face of the transaction, communicated to the defendant at the time such notice be given as will put the carrier were that the article to be shipped was the on guard, and give it some idea of the addibroken shaft of the mill, and that the plain-tional responsibility involved. The Baxentiffs were the operators of that mill; but the dale Case and the American courts following court held that these circumstances did not it have generally applied these general reasonably show that the profits of the mill principals, and we see no reason to depart must be stopped, if there was an unreasonable from them. delay in the delivery of the shaft. In this The case of Chapman v. Fargo, 223 N. Y. case the only notice given to the defendant|32, 119 N. E. 76, L. R. A. 1918F, 1049, Ann. was that the plant could not operate without Cas. 1919E, 1054, involved the recovery of this piece of machinery; but that does not special damages for the delay in the shipnecessarily imply that the plant would be ment of moving picture films, and to recover operated, if that piece of machinery was not damages for the loss of receipts and profits out of repair, or that its operation might not which would have been realized from the be stopped for some other reason. Nor does it exhibition of the films, if their delivery had imply that, even though it necessitated stop the package contained films to be exhibited,

not been delayed. The carrier knew that ping the operation, loss of profits, or loss of any kind, would result therefrom. There is and in general terms it was notified that nothing in the evidence from which it may be transportation was to be rushed because they

were to be exhibited; but it was not notified, inferred, either that knowledge was had or notice given that the plant was operating at either that the plaintiff was to be the exibia profit, or that it would operate, except for tor, or that he owned a theater where they the condition of this piece of machinery. were to be exhibited, or that the exhibition

was to be on a Christmas holiday, or that Manufacturing and other plants often cease

there had been a special advertisement of the operations for a time for various causes ; sometimes because they are not making a same, or that the films were so attractive

they could not be readily replaced. In profit, and at other times, even though they are making a profit, to enable them to have denying the recovery for special damages,

the court held that the general notice was a general overhauling of the machinery and

not a sufficient basis for a recovery, and the whole plant. [3] To make such a notice of the special

that the carrier should have been notified of

the particular circumstances and purpose circumstances sufficient to authorize a covery for special damages, there must be making their prompt delivery important: imparted to the carrier information of such "In effect he should have been made aware facts as will bring home to it the peculiar that plaintiff had made certain plans, based upfacts and conditions known to the shipper on the arrival of the films at a certain time, that will entail upon him a loss not ordina and that in case of nonarrival these plans rily within the contemplation of the parties ing certain damages.”

would be destroyed, in all probability causif the shipment is lost or its delivery delayed. In this case the only notice the carrier had In that case, Hutchinsoli on Carriers is was that the coal-mining plant could not quoted from (section 1369), wherein the rule operate without this piece of machinery, or is stated to be: until it was repaired, although it is shown

"General use to which the article was to be

re

(248 S.W.) liability for loss of the use, or the profits 5. Homicide 319-Affidavit of absent witwhich would thereby have been made. The ness which defendant might have read conspecial circumstances of the case requiring sidered as in evidence in determining whether care or expedition must have been brought now trial should be granted for cumulative to his attention."

evidence.

Where defendant in support of a motion for The same general doctrine is stated and continuance offered an affidavit by an absent applied in the Kentucky case of L. & N. witness relating to threats made by deceased

against accused, and the commonwealth conRailroad Co. v. Mink, 126 Ky. 337, 103 S. W. sented that the affidavit should be read as the 294, 31 Ky. Law Rep. 833.

testimony of that witness, but it was not read, The knowledge of the agent as alleged the affidavit is to be considered as in evidence being the same as the notice proven to have for the purpose of determining whether newly been given to him, and that notice not being discovered evidence, for which a new trial was sufficiently explicit as to the facts and cir- asked, was merely cumulative. cumstances to authorize the assessment of

6. Homicide en319-Cumulative evidence as to special damages, we think the action of the

threats generally does not require new trials. lower court was proper.

A new trial will generally not be granted Judgment affirmed.

for newly discovered evidence which would be cumulative as to threats generally, though not as to any specific threat, unless the evidence is of such an overwhelming nature and upon such a material point as to render it reasonably probable that a different verdict would be re

turned. DANIEL V. COMMONWEALTH.

7. Criminal law Om940-New trials hesitating. (Court of Appeals of Kentucky. March 9, ly granted for new evidence. 1923.)

New trials are hesitatingly granted on the

ground of newly discovered evidence; and, un1. Homicide 255(2)-Evidence held to sus- less the facts of the particular case are such, tain conviction of voluntary manslaughter.

or the issue to which the new testimony relates Evidence that deceased was shot during an is so material, as to produce the conviction from altercation with defendant held sufficient to a consideration of the whole record that there sustain a conviction of voluntary manslaugh- has been a miscarriage of justice and the probter, notwithstanding defendant's claim that de- ability that material error has been committed, ceased first attempted to shoot defendant. a new trial will not be ordered on that ground. 2. Homicide em 203(3)--Declaration held to 8. Homicide Om 319 New evidence as to have been made in extremis.

threats by deceased held not to require new A declaration, made to a physician on the

trials. same afternoon on which declarant died, and Where the commonwealth had consented after the doctor had told bim he would die that an affidavit for continuance might be read from the effects of the wound, and he had said as the testimony of the absent witness showing he felt like he was going to die, was sufficiently a threat by deceased against accused, and the shown to have been made in extremis to be evidence showed that accused and deceased competent.

were apparently on friendly terms a few min

utes before the shooting, it was not error to 3. Homicide 329–Dying declaration errone- refuse a new trial on the ground of newly disously excluded cannot be considered on ap- covered evidence as to a similar threat made by peal.

deceased against accused to a different witness. Even though a dying declaration was erroneously excluded from evidence, it cannot be 9. Criminal law Caw814(3)—Law inapplicable

to evidence should not be given to the jury. considered on defendant's appeal in determining whether the evidence was sufficient to sustain The law applicable to every state of case the conviction.

supported by the evidence to any reasonable

degree should be given to the jury, but it is 4. Homicide fuo 163(2)-Proof of business of not necessary to give instructions relating to deceased held not incompetent as character a state of case which the evidence does not witness.

tend to support. In a prosecution for homicide, proof that deceased was a farmer, and, when not employed 10. Homicide E-304—Instruction on accidental

shooting unnecessary, where defendant testi. on his own land, hired out to others, though admitted to show that deceased was not the own

fied he intentionally fired his pistol. er or operator of the still at which the difficulty In a prosecution for homicide occurring began, was not incompetent as an attempt to during a struggle between defendant and des establish the good character of deceased before ceased, it was unnecessary to give an instrucit had been attacked, though such evidence tion on accidental shooting of deceased, where might incidentally affect his character in so far defendarft stated he was trying to pull the trig. as it disproved his violation of the law by op- ger, and in another place in his testimony staterating a still.

ed he intentionally fired his pistol. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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11. Homicide Ema 304-Evidence held not to fendant had made against deceased, accusing warrant instruction as to accidental shooting. the latter, at some time prior thereto, of

In a prosecution for homicide, which occur- stealing some whisky and in it the "damn red during a struggle between defendant and lie” was passed which the defendant and deceased, evidence held not to support an in- Lacey say was used by deceased against him, ference that deceased was shot with the pistol, but Allen says he does not know who used which defendant testified he bad in his band that epithet. The parties were in their shirt when the struggle began, instead of with defendant's pistol, so that it was unnecessary to sleeves, and if defendant had any pistol at give an instruction on accidental shooting, based that place no one knew it or saw it, nor did on the possibility deceased was shot with his he offer to draw it. They were separated, own pistol, notwithstanding defendant's testi- and somewhere about 4:30 o'clock they dismony that be intentionally fired his pistol at persed, Gilbert leaving first with a jug of deceased.

whisky, Allen going in another direction with

a jar of the same goods, and Lacey and de Appeal from Circuit Court, Clark County. fendant then left with the former, carrying

C. C. Daniel was convicted of voluntary a sack with a jug or some jars of the same manslaughter, and he appeals. Affirmed.

goods in it, but if defendant had any of the

whisky when he left is not made clear. They Benton & Davis, of Winchester, for appel- went direct to the house of the deceased, who lant.

was at the time eating his supper; the other Chas. I. Dawson, Atty. Gen., and T. B. Mc-members of his family having finished their Gregor, Asst. Atty. Gen., for the Common- supper before he arrived. At the still Lacey wealth.

had a German pistol, which he offered to

sell to deceased for $30, but no trade was THOMAS, J. Between 5:30 and 6 o'clcok consummated: He carried that pistol along on the afternoon of August 12 (Saturday), when he and defendant went to the home of 1922, Emmett Gilbert was shot, near a buggy deceased, and when they arrived there they shed about 100 yards in front of his dwelling, asked if the latter was at home, and, being inon Cat creek in Powell county. Early the formed that he was, defendant requested de next morning he was carried to a hospital in ceased to shave him, but before that they Winchester, Ky., where he died that after were asked to eat their supper, which they noon or the next day from the effects of the declined, and stated that they had already wound. Appellant, C. C. Daniel, was indicted had supper. The shaving was done on the by the grand jury of Clark county, charging back porch of the house, and after it was bim with the willful murder of the deceased, through defendant asked deceased to go home Gilbert, and upon his trial he was convicted with him or to go to church with him, but of the offense of voluntary manslaughter, the latter declined on the ground that his and punished by the jury with confinement in mother and stepfather had arrived that the penitentiary for the term of 21 years. morning and expected to remain over till the His motion for a new trial was overruled, next Sunday afternoon, and that he could not and he appeals, urging through his counsel go. He was then asked if he would not walk as grounds for reversal: (1) That the ver

a piece of the way with them (defendant and dict is flagrantly against the evidence; (2) Lacey), and he consented to do so. The trio error in the admission of evidence introduced started down the road, and defendant and by the commonwealth; (3) newly discovered Lacey testified that deceased produced some evidence since the trial; and (4) because the whisky at or about the buggy shed, and the court did not instruct the jury upon the parties indulged. It was not dark, and memwhole law of the case. Other minor matters bers of the household who testified for the are referred to in brief, but the above are the commonwealth said that the three stopped only ones which we deem it necessary to con- close to a corner of the buggy shed, and they sider, and which we will dispose of in the heard some boisterous and loud talking, and order mentioned.

that two of them were close together, if not [1] 1. Up the hollow about a half mile clinched, and almost instantly two pistol from the residence of the deceased some one shots were fired, and deceased exclaimed, was operating a moonshine still, and he was “You have shot me!" or, “You have killed on that day working at it. About 2 o'clock me!" that Daniel at about that time ran in the afternoon defendant and Lawton down the road, and that some one whom the Lacey went to the still, evidently, as appears witnesses could not tell fired three or four from the record, to get some whisky. They shots after that. Deceased was shot but once, found there the deceased and Sid Allen. The and the ball penetrated his left side, and parties did more or less drinking, and after came out slightly to the left of his spine. about two hours the deceased and defendant Mrs. Gilbert immediately went to the house engaged in a difficulty in which they clinched, of a couple of neighbors, and she and the and in the sculling broke some of the jars of mother of the deceased and his stepfather whisky, which were sitting upon the ground. went to the scene, and found him lying in the That difficulty grew out of a charge that de road with the same German pistol that Lacey

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