Buckeye Mfg. Co. v. Woolley Foundry & Mach. Works

• Citation: 26 Ind.App. 7,58 N.E. 1069
• Parties: BUCKEYE MFG. CO. v. WOOLLEY FOUNDRY & MACHINE WORKS.
• Decision Date: 20 December 1900
• Court: Indiana Appellate Court

26 Ind.App. 7

58 N.E. 1069

BUCKEYE MFG. CO.

v.WOOLLEY FOUNDRY & MACHINE WORKS.

Appellate Court of Indiana.

Dec. 20, 1900.

Appeal from circuit court, Madison county; John F. McClure, Judge.

Action by the Woolley Foundry & Machine Works against the Buckeye Manufacturing Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Chipman, Keltner & Hendee, for appellant. Goodykoontz, Ballard & Campbell, for appellee.

ROBINSON, J.

Suit by appellee to recover of appellant the value of certain machinery. Complaint in two paragraphs, the second of which was withdrawn. Demurrer to first paragraph overruled. Answer in denial, and also special matter of defense. Trial by court, and finding for appellee. Motion for new trial overruled, and judgment on finding. The sufficiency of the complaint and denial of a new trial are questioned by the errors assigned.

The complaint avers that appellant made its written order to appellee for the construction and erection by appellee of one cylinder boring and facing machine at a price named; that on the same date appellant, in writing, accepted the order upon the terms and conditions therein stated, a copy of which order and acceptance are filed as exhibits; that by the terms of the written agreement appellant was to pay one-third cash on delivery of machine, one-third in 60 days, and one-third in 120 days from delivery; that appellee constructed and delivered the machine according to the contract; that upon delivery the first payment was made, but that the other payments are due, and appellant refuses to pay the same. The order is addressed to appellee, and says: “Please fill our order for the following goods, and ship, 60 days, via C. & S. E. R. R. Bill of lading, with freight rate named, and duplicate invoice, without prices or extensions, must accompany each invoice.” This is signed by appellant, and is followed with a description of one cylinder boring and facing machine and certain attachments and appliances for the same, with price for the complete machine, time of delivery, terms of payment, and the words: “Accepted. 11/24, 1897. Woolley Foundry & Machine Works, W. J. Woolley, Sec.” The order was made and accepted the same date. The contract was not for a lot of machinery at certain prices, but for a complete machine at a price named. In the exhibit is the expression, “Feed mechanism in head as described in blue print submitted.” The only objection made to the complaint is that neither the original nor a copy of this blue print is filed with the complaint. The rule is well settled that a complaint based upon a written instrument must set out the original or a copy of the instrument, and that such a defect is reached by demurrer. Petty v. Board, 70 Ind. 290;Williamson v. Foreman, 23 Ind. 540. And, if an action is based upon a written obligation, which is to be performed according to conditions in other written obligations forming a part of it, the complaint must set out, not only a copy of the obligation sued on, but also copies of the instruments referred to. Busch v. Association, 75 Ind. 348. And, if an action is based on a contract which is in separate parts, the original of all the parts, or copies, must be filed with the complaint. Potts v. Hartman, 101 Ind. 359;Titlow v. Hubbard, 63 Ind. 6. The contract in question provides that the machine shall have a suitable feed mechanism, and further along contains the provision above set out that the feed mechanism shall be as described in the blue print submitted. The written offer and the written acceptance constitute a contract. It is upon this written contract that the action is founded. Appellee must recover, if at all, upon the written contract. He relies upon it, and nothing else. In such case all prior negotiations of the parties are merged into the writing. The law presumes that the parties put everything into the contract that they wanted in it, and that nothing that is not then brought into the contract was intended to be a part of it. The blue print had been submitted, and was no doubt examined and discussed, just as the parties might examine and discuss another machine which it was desired to duplicate; but for some reason they did not see proper to make the blue print a part of their contract. As it was not made a part of the contract sued on, it was not a part of the exhibit filed.

Appellee's president testified that he had been a practical machinist engaged either at work as a machinist or in manufacturing for about 25 years; had worked boring cylinders; that he saw the machine in question in operation after it was set up in appellant's factory; described the manner in which the machine worked, and the character of the work after it was done; and was then asked: “I will ask you now, from your observation of the machine in its operations there, the work that was being done upon it, the character of the work after it was done, the condition of the machine as you testify to having seen it, its rigidity and stability that you have testified about, lack of chatter, and all that you observed and saw there, and with all your knowledge that you may have upon the subject as a machinist, what you say as to whether that machine is a good and competent machine for the purpose for which it was constructed?” Objection was made that the question “does not state the purpose or object for which it was constructed. The question is too short. It leaves the witness to determine in his own mind for what it was constructed, without stating the purpose for which it was constructed.” The objection was overruled. It is not necessary to determine whether the grounds of objection made were sufficient, as the witness immediately was asked, and answered without objection, the following: “I will ask you whether or not that machine, based upon the facts that I have stated, and your knowledge, if operated by a good practical machinist, will perform the work of boring cylinders, facing them, and turning the necks in a practically perfect manner.” It is well settled that, where it is claimed evidence was improperly admitted, only such objections will be considered on appeal as were presented to the trial court. The same witness was asked whether, at any time after the execution of the contract, he had said to representatives of appellant that he would warrant that the machine would do the work specified in the contract; and answered that he had not. We do not understand that any witness testified that such a warranty was made by the witness, but, if the...