Berkey v. Montwheler

• Decision Date: 11 October 1921
• Docket Number: No. 10952.,10952.
• Citation: 132 N.E. 306,76 Ind.App. 386
• Court: Indiana Appellate Court
• Parties: BERKEY v. MONTWHELER et al.

76 Ind.App. 386

132 N.E. 306

BERKEY

v.MONTWHELER et al.

No. 10952.

Appellate Court of Indiana, Division No. 1.

Oct. 11, 1921.

Appeal from Superior Court, Elkhart County; William B. Hile, Judge.

Action by Fred Montwheler and another against Albert J. Berkey. Judgment for plaintiffs and defendant appeals. Affirmed.

Harman & Jay, of Elkhart, and Warren Berkey, of Goshen, for appellant.

James S. Dodge and Fred E. Cluen, both of Elkhart, for appellees.

REMY, J.

This is an action by appellees against appellant. The complaint, omitting the formal parts, is, in substance, as follows: That on May 15, 1919, appellant, being the owner of a certain used automobile, entered into a verbal agreement with appellees, by the terms of which appellees agreed to purchase said automobile “for a consideration of $750, to be paid, $200 cash in hand, and the execution and delivery of 22 notes of $25 each, due one each 30 days until the last of said notes is paid”; that appellant would retain the automobile in his possession, and would make certain repairs, and would “put the same in first-class condition and in good running order” within 60 days, and upon his failure so to do appellant “would return the cash payment of $200 and the said notes”; that pursuant to the agreement appellees paid to appellant the $200, and executed and delivered to him the 22 promissory notes as agreed; that appellant in accordance with the agreement retained the automobile in his possession, and still holds the same; that more than 60 days have elapsed since the agreement was entered into, but appellant has “wholly failed and refused to put the automobile in first-class condition” as agreed; and that appellees, prior to the commencement of the action, demanded a return of the cash paid, and a return of the notes, all in accordance with the agreement. A motion to require the complaint to be made more specific and a demurrer to the complaint for want of facts, each having been overruled, appellant filed an answer in denial and a cross-action. The pleadings in the cross-action are not material in the determination of the questions involved in this appeal, and are not incorporated in appellant's brief. A trial by the court resulted in a judgment for plaintiff, and for a cancellation of the notes. Following the rendition of the judgment, appellant filed a motion for a modification of the judgment.

[1] It is urged by appellant that, inasmuch as it is not averred in the complaint in what particular appellant, defendant below, failed to put the automobile “in first-class condition,” the court committed reversible error in overruling the motion to make the complaint more specific, and also in overruling the demurrer to the complaint. It is conceded by appellant in his brief that the alleged error of the court in overruling the motion to make the complaint more specific presents substantially the same question as is...