Beuret v. Stahl

• Decision Date: 14 January 1921
• Docket Number: No. 10596.,10596.
• Citation: Beuret v. Stahl, 76 Ind.App. 131, 129 N.E. 407 (Ind. App. 1921)
• Court: Indiana Appellate Court
• Parties: BEURET v. STAHL.

76 Ind.App. 131

129 N.E. 407

BEURET

v.STAHL.

No. 10596.

Appellate Court of Indiana, Division No. 1.

Jan. 14, 1921.

Appeal from Circuit Court, Allen County; O. N. Heaton, Special Judge.

Action by Louis J. Beuret against William G. Stahl. Judgment for defendant on his counterclaim, and plaintiff appeals. Affirmed.

P. V. Hoffman, of Auburn, for appellant.

Harry H. Hilgemann, of Ft. Wayne, for appellee.

REMY, C. J.

On March 30, 1917, appellant entered into a written contract with appellees, by the terms of which appellant sold to appellees, and agreed to install in their dwelling house, a warm air furnace. Appellees were to pay for said furnace a consideration of $160, one-half of which sum was to be paid when the furnace was installed, and the remainder by a note payable at a later date. On April 24, 1917, appellees made a cash payment of $80, and executed their note for a like sum due February 1, 1918. The said contract contained the following warranty:

“We guarantee that the furnace will warm all rooms to which complete run of pipes has been made by us to a temperature of seventy degrees Fahrenheit in zero weather, the owner to furnish a suitable chimney flue, proper fuel and to obey our directions. ***

In case the furnace fails to heat house as per guarantee above, and we are unable to correct the fault, we will remove the furnace and refund the money paid.”

The furnace, when tested, proved to be too small for the size of house to be heated, and did not meet the requirements of the warranty, though appellees had furnished a suitable chimney flue, and in operating the furnace had used proper fuel and had obeyed the directions of appellant. Appellant was notified by appellees of the failure of the furnace to meet the requirements of the warranty, and in response made some alterations, but did not, and could not, correct the defect. Whereupon appellees notified appellant that, in accordance with the terms of the contract, he could remove the furnace. Appellant did not remove the furnace, nor did he refund the cash payment of $80. The furnace remained in the house, and was used by appellees until the date of the trial.

The note given for the balance of the contract price of the furnace was not paid at maturity, and appellant commenced this action; his complaint being based on said note and the contract for the installation of the furnace. Appellees filed an answer in denial; also a counterclaim founded upon said contract of warranty demanding judgment for the amount of the cash installment of the purchase price paid.

By a special finding the court trying the cause found the facts hereinbefore set out, and by conclusions of law stated that the law was with appellees, and rendered judgment against appellant...