Allyn v. Burns
| Decision Date | 26 January 1906 |
| Docket Number | 5,507 |
| Citation | 76 N.E. 636,37 Ind.App. 223 |
| Parties | ALLYN v. BURNS |
| Court | Indiana Appellate Court |
From Wells Circuit Court; Edward C. Vaughn, Judge.
Action by William R. Allyn against William F. Burns. From a judgment for defendant, plaintiff appeals.
Affirmed.
Todd & Gordon and Dailey, Simmons & Dailey, for appellant.
Levi Mock, John Mock and George Mock, for appellee.
Appellant instituted this action against appellee to collect the contract price for a wind pumping outfit. The cause was tried upon an amended complaint in three paragraphs. The first and second paragraphs are based upon a written order made part of each paragraph by exhibit. The order is as follows:
"Poneto, Indiana, May 23, 1902.
W R. Allyn.
Ship to Frank Burns at Poneto.
How ship. Freight. When. At once.
Terms. Cash on sixty days trial.
1 25 ft. Tower, steel.
1 Acme Regulator.
1 Dewey Fountain.
30 feet, 1 inch Pipe.
20 feet, 1 1/2 inch pipe.
For Force Pump and fitting Ext.
$ 75.00
W. R. Allyn.
B. Thompson."
The first paragraph alleges the delivery on the premises of appellee, on June 12, 1902, of all the material called for by the order, and out of said material appellant constructed for appellee a wind pumping outfit; that appellee took and retained possession of the same, used and accepted the same, after giving it sixty days trial, but has refused to pay therefor; that the contract price for said pump is past due and wholly unpaid, and judgment is demanded.
The second paragraph alleges that appellee, in writing, ordered from appellant certain materials, out of which appellant was to erect for appellee on his premises a wind pump, on sixty days' trial, and for which appellee agreed to pay appellant $ 81.15; that, on June 12, 1902, pursuant to such order, appellant delivered on the premises of appellee the goods so ordered, and erected thereon a wind pump; that appellee took possession and accepted the same, after giving it sixty days trial, and thereafter used the same, for the purpose of pumping water for his live stock, until December, 1902, "when he, by himself and through his agents, pulled out the bolts that supported one side of the mill and let the same fall down, and thereby broke said mill to pieces and rendered it worthless." Said paragraphs also aver the amount due, and appellee's failure and refusal to pay the same.
The third paragraph counts upon an indebtedness due appellant from appellee for goods and merchandise sold and delivered by appellant to appellee, to be paid for in cash on sixty days' trial, and upon the fact that appellee accepted and used the same after sixty days' trial; it also avers the amount due, and appellee's refusal to pay the same.
Appellee answered this complaint in two paragraphs. The first, a general denial, and the second alleges that the contract mentioned in the complaint was a parol contract; that by the terms of the contract appellant agreed to erect a wind pump on the premises of appellee out of the material mentioned in the written order filed with the complaint; that after sixty days' trial of said pumping outfit-- the same being satisfactory to appellee--he was to pay for the same; that by said agreement appellant was to erect a tower twenty-five feet high, also a fourteen-barrel tank; that the derrick should be good and substantial; that a good pump should be furnished, one with sufficient capacity to furnish water for the stock of appellee; that appellee knew and was shown the place where the pump was to be erected; that the water-pipe was to be placed under ground; that the pumping outfit was to be in all respects equipped and work as well as a pump owned by one Stahl, which was known both to appellant and appellee at the time the agreement was made; that appellee had no knowledge of wind pumps; that appellant, in violation of his agreement, (1) erected a tower only twenty-one feet high, (2) erected a tank the capacity of which was only eleven barrels, (3) erected a derrick which was slender, inferior, unsubstantial and worthless, (4) furnished a pump which was inferior and worthless, (5) furnished a pump which was not of sufficient capacity to supply water for the stock of appellee, (6) laid the water-pipe above ground. Appellee further alleges that he gave the pumping outfit an honest and fair trial, and was not satisfied therewith, and never accepted the same; that on August 15, 1902, he notified appellant in writing and verbally that he would not accept the pumping outfit, that it was not satisfactory, and ordered him to remove the same from his premises, as he had agreed to do; that appellant failed to remove the same. To this affirmative answer appellant replied in general denial.
The issues thus formed were submitted to a jury for trial, resulting in a general verdict for appellee. Appellant thereupon filed a motion for a new trial, which the court overruled, and judgment was rendered in favor of appellee for costs.
Appellant prosecutes this appeal to this court, and assigns as error the overruling of his motion for a new trial.
(1) Appellant by his assignment of errors presents for review the ruling of the court in refusing to give certain instructions by him requested, and the action of the court in giving to the jury certain instructions which he insists are erroneous. Instruction number seven, tendered and refused, reads as follows: "I instruct you that where a sale of machinery is made reserving to the buyer the right to return the property if it does not prove satisfactory, or is worthless as a pumping outfit, if the buyer retains the property and fails to return it within a reasonable time, the right to return is thereby forfeited, and the sale becomes absolute like any other sale." Appellant insists that this instruction is relative to the first paragraph of his complaint, and for that reason should have been given. Because the instruction was relative to some paragraph of the complaint is not alone sufficient to warrant the court in submitting it to the jury; for, without some evidence to which it was pertinent relative to such issuable facts, there would be a lack of one of the essential elements necessary to its support. Indiana R. Co. v. Maurer (1903), 160 Ind. 25, 66 N.E. 156; Abbitt v. Lake Erie, etc., R. Co. (1898), 150 Ind. 498, 50 N.E. 729; Price v. Lonn (1903), 31 Ind.App. 379, 68 N.E. 177.
This instruction places the duty on the buyer to return the property within a reasonable time if it should not prove satisfactory. From the evidence it appears that Ernest Thompson acted for appellant in making the contract with appellee, and from his testimony on the subject we take the following: "I said that, in the event the mill did not equal or was better than the best, Mr Allyn should take it down and take it away at his own expense." Appellee testified that "He [Thompson] was to put that mill up there on sixty days' trial, and at the expiration of sixty days, if I was not satisfied with it, they were to remove it at their own expense." On the question of whose duty it was to return the mill in case it did not prove satisfactory to appellee, we have not been...
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