Johnson v. Duncil

178 S.W.2d 430, 296 Ky. 723, 1944 Ky. LEXIS 626

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 25, 1944
• Status: Published

Opinion

Opinion of the Court by

Judge Tilford

Dismissing appeal.

The petition to which the chancellor sustained a general demurrer begins with a statement of facts which would have entitled plaintiff, under the provisions of Section 181, Civil Code of Practice, to an order of delivery for an automobile of the value of $600. It is next alleged that the plaintiff had sold and delivered the automobile to the defendant “for a much less price than it was worth” after the defendant had surreptitiously tampered with the machine while pretending to repair it and induced the plaintiff to believe “that it was out of repair and was worth much less than it really was worth.” It was also alleged that the plaintiff would not have parted with the car if the defendant had not made Mm believe tbat it was m bad condition; and tbat “shortly after defendant took possession of bis car be went to tbe defendant and tendered and offered tbe price back and all expenses to defendant all of wMcb be refused to accept.” Tbe prayer was for a rescission of tbe contract of sale, tbe restoration of tbe car, and $300 damages for its wrongful detention.

Whether or not the petition stated a cause of action, we are compelled to dismiss this appeal, granted by tbe lower court from tbe judgment dismissing tbe petition, because of tbe absence of any allegation from which it could be determined tbat tbe value in controversy is as much as $500 exclusive of interest and costs. Tbe price which defendant paid tbe plaintiff for tbe car is' not alleged, and, for aught tbe record discloses, it may have been any sum less than $600. Assuming tbe sale price to have been $500, tbe value in controversy could not have exceeded $400, tbe difference between tbe car’s alleged value and tbe sale price, plus tbe damage claimed. KRS 21.060, KRS 21.070.

Accordingly, tbe appeal is dismissed.