Brown v. Russell & Co

• Decision Date: 23 January 1886
• Docket Number: 12,241
• Court: Indiana Supreme Court
• Parties: Brown v. Russell & Co

4 N.E. 428

105 Ind. 46

Brown v. Russell & Co

No. 12,241

Supreme Court of Indiana

January 23, 1886

From the Sullivan Circuit Court.

The judgment is affirmed, with costs.

J. H Blake and J. W. Shelton, for appellant.

G. W Kleiser, J. H. Kleiser, J. T. Hays and H. J. Hays, for appellee.

OPINION

Howk, J.

The appellee, Russell & Co., a corporation of that name commenced this suit against appellant Brown, in the Vigo Superior Court. The object of the suit was to foreclose a certain chattel mortgage, executed to appellee by the appellant to secure the payment of certain promissory notes also executed by him to appellee, and to collect the debt evidenced by such notes. After the cause was at issue, on appellee's application, the venue thereof was changed to the Sullivan Circuit Court. There the cause was heard by the court, and, at appellant's request, the court made a special finding of the facts and thereon stated its conclusions of law in favor of appellee. Over appellant's exceptions to its conclusions of law, the court rendered its final decree herein, in accordance therewith, against him and in favor of appellee.

In this court appellant Brown has assigned several errors, but of these only one is properly saved in, or presented by, the record of this cause, namely: Error of the court in its conclusions of law upon the facts specially found.

The facts found by the court were, in substance, as follows:

1. In 1882, during the months of June, July, August and September, one J. F. McCandless was the duly appointed agent of appellee to sell its machinery, including steam engines and separators, in Vigo county, Indiana.

2. One -- Myers was agent for appellee in and for the State of Indiana, and had supervision of local agents, and assisted them in the sale of appellee's machinery.

3. In June, 1882, McCandless and Myers negotiated with appellant for the sale to him of a steam engine and separator, and he agreed to pay therefor the sum of $ 1,625, to be paid as follows: $ 545 October 1st, 1882, $ 545 October 1st, 1883, and $ 535 October 1st, 1884.

4. In such negotiations, the agents aforesaid verbally warranted such machinery to be well made and of good material, and, with proper management, capable of doing as good work as similar articles of other manufacturers.

5. Afterwards, on June 5th, 1882, appellant signed a written and printed order to appellee for such machinery to be shipped to McCandless, in which appellant agreed to receive such machinery, subject to the following conditions: "The above articles are warranted to be of good material, well made, and, with proper management, capable of doing as good work as similar articles of other manufacturers." Such written order contained further stipulations, to wit: "If said machinery, or any part thereof, shall fail to fill this warranty within ten days of first use, written notice shall be given Russell & Co., Massillon, Ohio, and to the party through whom the machinery was purchased, stating wherein it fails to fill the warranty, and time, opportunity and friendly assistance given to reach the machine and remedy any defects." It is further provided in said order as follows: "If the defective machinery can not then be made to fill the warranty, it shall be returned to the place where received, and another furnished on the same terms of warranty, or money and notes returned to the amount represented by the defective machinery, and no further claim be made on Russell & Co." Such order contained the further stipulation, to wit: "Continued possession or use of the machine, after the expiration of the time named above, shall be conclusive evidence that the warranty is fulfilled to the satisfaction of the purchasers, who agree to thereafter make no other claim on Russell & Co., under the warranty. All warranties to be invalid and void in case the machine is not settled for when delivered, or if the warranty is changed by erasure, addition or waiver."

Such was the substance of the conditions in said order. Preceding the date and at the top of such order, is printed the following: "This order taken subject to the acceptance of Russell & Co. Purchasers will note, that no promises made by any person, whether agent, employee or attorney, will be considered binding unless made in writing and ratified by home or branch office." Appellant Brown signed such order without reading the same, or having it read over to him, but was informed that the warranty of the machinery would be the same as that which had been stated in the verbal negotiations.

6. The order was handed to Myers, the general agent for the State, and was by him forwarded to the branch office of Russell & Co., at Indianapolis, and by it accepted and acted upon.

7. Pursuant to such order, the machine in complaint mentioned was delivered to appellant Brown at the public square in the city of Terre Haute, on the 8th day of July, 1882, and appellant executed to Russell & Co. his four promissory notes, one for $ 250, due September 1st, 1882, one for $ 325, due October 1st, 1882, one for $ 545, due October 1st, 1883, and one for $ 535, due October 1st, 1884, all drawing eight per cent. interest, payable annually until paid, without relief, and attorneys' fees, and to secure such notes appellant executed a chattel mortgage on said machinery. Such mortgage was duly recorded, and the consideration for the notes and mortgage was the sale of such machinery to appellant.

8. Such machinery was tested by appellant on the 9th day of July, 1882, and failed to do good work. He verbally notified appellee's agent on the same day, and Myers attempted to make the machinery do good work, but did not succeed.

9. Appellant attempted further to make the machinery do good work, until July 14th, 1882, at which time he notified McCandless, and then offered to return the machinery to him in the city of Terre Haute, and was informed by McCandless that he could not receive it, because he had no room for it, and he requested appellant to keep it until he could see further about it.

10. Appellant did retain the machine and attempted to use it, until in September, 1882, since which time it has been in his possession, but has not been used, nor has there been any attempt to use it.

11. Such machinery is not well made nor of good material, nor is it under proper management capable of doing as good work as similar articles of other manufacturers.

12. As a thresher and separator, such machine has no value, but, as property, it has a market value, the amount of which the court is unable to determine from the evidence.

13. Appellant purchased such machinery for a thresher and separator, as appellee knew at the time of the sale.

14. Appellant has not, in point of fact, converted any portion of such machinery to any other use or purpose, and does not retain the same, nor any portion thereof, with any such intention.

15. Such machinery was properly managed in attempting to use it.

16. Such machinery was not well made, in this: The engine was not in line, and was so constructed that it would not generate steam enough to afford proper power. The separator would not take the wheat from the straw, and would choke up and stop when heavily fed, and, when fed otherwise, would break and crack the wheat, and, with proper management, would not thresh more than two hundred and fifty or three hundred bushels of wheat per day, and the expenses exceeded the earnings.

17. Similar articles of other manufacturers, with proper management, would thresh of wheat from one thousand to one thousand two hundred bushels per day.

18. Agents McCandless and Myers were instructed by appellee to make no verbal warranties, but appellant had in fact no knowledge of such instructions.

19. The verbal warranty was made by McCandless and Myers, and is, in substance, the same as that named in the written and printed order, upon which appellee delivered to appellant the machinery mentioned in the complaint.

20. Appellee received, accepted and retained the notes and mortgage given by appellant and sued on, without any knowledge of the fact that such agents had made a verbal warranty to appellant. At no time did appellee make out and sign a duplicate...