Anderson Foundry And Machine Works v. Myers
| Decision Date | 26 May 1896 |
| Docket Number | 1,704 |
| Citation | 44 N.E. 193,15 Ind.App. 385 |
| Parties | ANDERSON FOUNDRY AND MACHINE WORKS v. MYERS |
| Court | Indiana Appellate Court |
From the Madison Circuit Court.
Cause reversed, with instructions to sustain the appellant's motion for a new trial, and with leave to amend the complaint if desired.
Chipman Keltner & Hendee, for appellant.
H. C Ryan, Carson & Thompson, for appellee.
The appellant, the Anderson Foundry and Machine Works, sold to the appellee a steampower brick machine, for the price of $ 550.00. The appellee brought this action, claiming that he had sustained damages on account of the false and fraudulent representations of the defendant, and of breach of warranty. The theory of the complaint is somewhat uncertain. It is susceptible of being construed as an action to recover damages for false and fraudulent representations, and also for a breach of warranty.
It appears, from the instructions given, that the trial court construed the complaint as proceeding upon the theory of fraudulent representation, and appellee's counsel, in their brief, expressly claim that this is theory of the complaint, and that they tried the case upon that theory. When a pleading is susceptible of being construed as proceeding upon two or more theories, or the predominating theory is dubious or uncertain, that theory adopted by the parties and trial court, and upon which the cause proceeded and was tried, will be followed by this court, Cleveland, etc., R. W. v. Debolt, 10 Ind.App. 174, 37 N.E. 737.
The averments of the complaint, in so far as they are necessary to present the question of fraud, are, substantially, as follows:
The plaintiff entered into an agreement with the defendant for the purchase of a steam-power brick machine. It was agreed that the plaintiff should pay the freight from Anderson to Centerton, and that he would place the machine in his brickyard at Centerton, and provide clay for starting and testing the machine. The defendant agreed to superintend and start the machine into successful operation, and to the satisfaction of the plaintiff. The defendant represented and warranted that the machine had a capacity to make 35,000 to 40,000 perfect brick per day, from clay sufficiently stiff to retain their forms; that the machine was of the best workmanship and materials, and was new, having been used but two or three days.
In consideration of the representations, agreements, and warranty, the plaintiff agreed to pay the defendant the sum of $ 550.00, as follows: $ 275.00 cash, and $ 275.00 by his negotiable promissory note due in one year, when the defendant should start the machine into successful operation, and it should be demonstrated to the plaintiff's satisfaction that the defendant's contract and warranty had been fully performed. In pursuance of such agreement, the machine was set up in the plaintiff's yard at Centerton, and everything done by the plaintiff to make a proper test of the machine; on the 24th day of August, 1892, the defendant sent its agent to superintend the starting and operating of the machine. The plaintiff had no knowledge of the time when the test should be made, and was not present. In the absence of the plaintiff, the defendant's agent did superintend the starting and operating of the machine, and thereafter, upon the return of the plaintiff, represented to him that the machine had worked perfectly and as guaranteed, which representations were not true, but the plaintiff believed the same to be true, and relied thereon. The defendant, at the same time, in a written communication, stated to the plaintiff that if everything was not perfectly satisfactory, it would make it so. Afterwards, on the 31st day of August, the plaintiff notified the defendant that he had not yet operated the machine, and that he was not prepared to make payment, but probably would be by the following week, and asked for an additional warranty; that the defendant thereupon, on the 2d day of September, made this further statement in writing: "We will say to you that you can rest easy, for we will do our part in the event anything should not prove satisfactory, which we are certain will not be the case;" that, relying upon such representations and agreements, the plaintiff, before making a test of said machine, and before it had been demonstrated to his satisfaction that the machine fille the warranty, made the cash payment of $ 275.00, and executed his negotiable promissory note for the deferred payment. It is further averred that the machine was of imperfect construction; that it had less capacity than was represented and warranted, and could not be adjusted so as to make brick perfectly, and was not a new machine, but a second-hand one, and was wholly worthless; all of which the defendant knew at the time of making the contract and representations, and which were fraudulently concealed and withheld from the plaintiff, with the intent to cheat and defraud the plaintiff; and that by means thereof the plaintiff was induced to enter into said contract and to make the payments for the machine; that, by reason of such fraudulent acts, the plaintiff has suffered great loss for expenditures for labor in trying to operate the machine, and suffered a loss in his business by reason of the failure of the machine to operate properly.
Fraud and...
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