Fehler v. Page

2 Ky. Op. 388, 1868 Ky. LEXIS 421

• Court: Court of Appeals of Kentucky
• Decided: May 23, 1868
• Status: Published

Opinion

Opinion op the Court by

Judge Peters:

The fact that the jack was lying down at the time of the sale, there being no other alleged obstruction in the way furnished ,no excuse for the failure of appellant then to measure him, or to inspect him and ascertain his true height.

Moreover it appears that more than six years had elapsed from the date of the sale until the answer was filed,, during all of which time no dissatisfaction was manifested with his purchase by appellant, nor unwillingness’ to retain him, and it must be presumed be used the jack for the purpose for which he purchased him, and realized gains from his services. Nor is it alleged in the original, or amended answer that he was induced by any subsequent representations true, or false, of the seller, to retain the jack for so great a lenght of time, without complaint, if there was a warranty the law presumes he was such as he was warranted to be. 3 Starkie 1605-6.

Lawless, for appellant. Barnett & Edwards, for appellee.

The period which had elapsed between the sale and the filing of the answer, in which the first complaint of the breach of warranty is made, is shown by the pleadings. The defense set- up in the answer was therefore insufficient, and the demurrer properly sustained. Wherefore, the judgment is affirmed.