D'Arcy Spring Company v. Ansin
| Decision Date | 28 January 1925 |
| Docket Number | 24,225 |
| Citation | 146 N.E. 214,196 Ind. 98 |
| Parties | D'Arcy Spring Company v. Ansin |
| Court | Indiana Supreme Court |
Rehearing Denied April 7, 1925.
1. APPEAL.---Right of review waived on motion for new trial, by admission of partial liability.---A defendant who has admitted his indebtedness to plaintiff for part of the amount sued for is not entitled to a review of the court's ruling on his motion for a new trial assigning that the finding or verdict was not sustained by sufficient evidence or was contrary to law. p. 102.
2. TRIAL.---Direction of verdict is proper where at least partial liability is established.---In an action by seller to recover the price of goods sold and delivered where the buyer's liability was established without conflict of evidence, except as reduced by facts pleaded specially by the defendant, of which it had the burden of proof, the direction of a verdict for the plaintiff was proper if there was no competent evidence to prove those facts. p. 102.
3 SALES.---Agreed limit after acceptance of goods for examination, precludes remedy of buyer for breach of warranty thereafter.---Parties to a contract of sale have a right to fix a limit on the time allowed after the acceptance of the goods for the purchaser to discover defects in the goods purchased, and, unless waived, such a limitation precludes a recovery by the purchaser for a breach of warranty of the quality where the breach was not discovered until after the expiration of said time. p. 103.
4. SALES.---Counterclaim for breach of warranty not maintainable after expiration of agreed time for examination.---In an action by seller to recover the price of goods sold and delivered, the court properly refused to submit to the jury the issues on a counterclaim for a breach of warranty of the quality of goods sold, where the defendant had not complied with a provision of the contract limiting the time for the discovery of defects therein, and properly directed a verdict for the plaintiff. p. 104.
5. APPEAL.---Exclusion of evidence not available error if brief insufficiently presents it.---The exclusion of evidence is not available error on appeal if appellant's brief does not mention that subject among the "errors relied on," and does not recite the record showing that a proper offer was duly made to introduce the evidence excluded, that the court excluded it, and that appellant duly reserved a proper exception to the ruling by which it was excluded. p. 104.
From Marion Superior Court (A 10,430); Linn D. Hay, Judge.
Action by David Ansin doing business as the "Royal Textile Company," against the D'Arcy Spring Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Mason & Sharpe, Herman W. Kothe and W. F. Elliott, for appellant.
Ralston, Gates, Lairy, VanNuys & Barnard, for appellee.
Appellee as plaintiff below recovered a judgment against appellant, defendant below, for $ 10,910.48 on a verdict for that amount returned in obedience to a peremptory instruction given by the court. The only error assigned is overruling the motion for a new trial, under which appellant calls in question the direction to return a verdict for the plaintiff for $ 10,910.48, and also insists that the verdict is not sustained by sufficient evidence and is contrary to law, and that the amount of the recovery was too large.
The complaint was in three paragraphs. The first was a "common count" for goods, wares, and merchandise alleged to have been sold and delivered, as specified in a bill of particulars, with interest, in the total amount for which judgment was recovered. The second and third paragraphs were for the purchase price of goods of the values of $ 2,600.32 and of $ 1,304.48, respectively, purchased on April 20, 1920, which the parties stipulated was owed by defendant to plaintiff. The fourth paragraph counted on a written contract, dated April 17, 1920, by which plaintiff agreed to sell and defendant agreed to purchase a quantity of "56-inch 4.50 sheeting, price 95 cents per pound, net 30 days from date of invoice, f. o. b. mill," with a stipulation that "these goods shall not be returned, nor will allowances be made for any cause after 30 days from receipt, nor after goods are cut." This paragraph further alleged that pursuant to said contract, plaintiff delivered to defendant 472 pounds of said sheeting by shipping the same to it on May 12, 1920, and the parties stipulated that defendant owed plaintiff $ 448.40 for that May shipment; this paragraph further alleged that pursuant also to the contract, plaintiff shipped and delivered to defendant on June 23, (an admission showing the date of shipment to be June 12), 1920, 5,879 pounds of said "56-inch 4.50 sheeting" called for by the contract, and that defendant received and accepted it, but that no part of the purchase price had been paid, and that the same was due and unpaid, with interest after thirty days from the date of shipment. Defendant answered by a general denial, and also filed several paragraphs of what it denominated "counterclaim" seeking to recover damages for alleged breach of an implied warranty that the goods sold should be suitable for the use for which it was alleged plaintiff knew they were purchased. Two of these paragraphs counted generally on an alleged implied warranty, and the effect of a breach under...
To continue reading
Request your trial