Aultman v. Seichting

• Decision Date: 20 November 1890
• Parties: Aultman, Miller & Co. v. Seichting.
• Court: Indiana Supreme Court

126 Ind. 137

25 N.E. 894

Aultman, Miller & Co.

v.Seichting.

Supreme Court of Indiana.

Nov. 20, 1890.

Appeal from circuit court, Morgan county; A. M. Cunning, Judge.

J. H. Jordan and Oscar Matthews, for appellant. Adams & Newby, for appellee.

Olds, J.

This is an action brought by the appellant against the appellee upon a promissory note given by the appellee for a Buckeye Down Binder. The appellee answered in three paragraphs; also filed a cross-complaint in three paragraphs. The appellant demurred to each paragraph of answer and cross-complaint, which demurrers were overruled, and appellant excepted to the rulings of the court, and assigns such rulings as error. Appellant also filed a motion for new trial, which was overruled, and exceptions reserved, and such ruling is also assigned as error.

At the time the appellee gave his order for the binder the appellant executed to the appellee a written warranty, which is as follows: “The Buckeye machine, for which the written order is given, is warranted to be well made, of good material, and, if properly managed, to do good work. The purchaser shall have one day in the harvest field to give it a fair trial, and agrees to see that the machine is properly managed. In case the machine does not do good work, the purchaser is to give written notice, both to the agent from whom he received the machine, and to Aultman, Miller & Co., Akron, Ohio, stating wherein it fails, and shall allow reasonable time to get to it and remedy the defects, if any, and the purchaser shall render necessary and friendly assistance to the person sent to look after the machine; and, if it cannot be made to do good work, he shall return it to the place where he received it, free of charge, in as good condition as he received it, excepting natural wear, and a new machine will be given in its place or the money will be refunded. Continued possession of the machine or failure to give notice, as above, shall be conclusive evidence that the machine fills the warranty, and no one has any authority to change this warranty in any manner. [Signed] Aultman, Miller & Co.”

The first paragraph of the answer admits the execution of the note sued on, and then alleges that the same was executed as part payment for a Buckeye Down Binder which was sold by appellant to appellee on the 11th day of June, 1885, and warranted to do good work by appellant, in writing, and to be of good material and well built and constructed, and to cut and bind wheat in good order and condition, setting out a copy of the written warranty as a part of and an exhibit to the answer. It further alleges that the appellee was ignorant of the quality of the machine, and, relying upon said warranty, purchased the same and executed said note in part payment therefor; that said machine would not do good work, and would not cut and bind wheat in good order; that appellant waived the notice required by said written warranty, and sent an agent and expert to try said machine, in pursuance to said written warranty; that appellee, after having tried said machine on several occasions, and after appellant, by its agents, had also tried to work the same, and to cut and bind wheat with it, and after it had been fairly and sufficiently tried and utterly failed to do good work or to work at all, took the same back to appellant's agent, where he got the same, and left it with him, and demanded that appellant furnish a new machine, and one that would do the work warranted to be done by said warranty; that said machine was, at all times, absolutely worthless; that said machine was forwarded to appellee at...