Elwood Planing Mills Company v. Harting
| Decision Date | 11 January 1899 |
| Docket Number | 2,610 |
| Parties | ELWOOD PLANING MILLS COMPANY v. HARTING |
| Court | Indiana Appellate Court |
From the Madison Circuit Court.
Reversed.
E. S Griffin, R. T. Broadbent, W. A. Kittinger, E. D. Reardon and W. S. Diven, for appellant.
B. R Call and C. M. Greenlee, for appellee.
The appellant brought its action against the appellee, the complaint consisting of two paragraphs, the first being upon an account for goods and merchandise, the bill of particulars filed therewith showing a balance of $ 100.26; and the second paragraph declaring upon an account stated for that amount. The appellee answered in four paragraphs, the first a general denial. The appellant replied by general denial to all the paragraphs of answer except the first. Upon trial of the cause by jury, a general verdict for the appellee was returned, and, appellant's motion for a new trial having been overruled, judgment was rendered in accordance with the verdict.
None of the pleadings were tested by demurrers. The appellant's assignment of errors contains seven specifications. The first six assail the second, third, and fourth paragraphs of answer severally, as not stating facts sufficient to constitute a defense to the appellant's cause of action as stated in the complaint, or as stated in a specified paragraph of the appellant's complaint. These specifications do not present any question for the consideration of this court. The question as to the sufficiency as a defense of a paragraph of answer cannot be raised for the first time by assigning here its insufficiency as error. City of Evansville v. Martin, 103 Ind. 206, 2 N.E. 596, and cases there cited; State, ex rel., v. Curry, 134 Ind. 133, 33 N.E. 685.
It appeared upon the trial and in one of the paragraphs of answer that the articles sold by the appellant to the appellee were for the most part furnished by the appellant for use by the appellee in the construction of a certain expensive dwelling house, and the dispute related to the question whether certain portions of the materials so furnished and used were well seasoned and first-class materials, and in proper condition for such purpose as contracted for by the parties, or were of inferior and unsuitable quality, unseasoned, or seasoned in different degrees of dryness, so that, after being so used, they shrank, and warped, and failed to fit together properly, to the injury of the house and the consequent damage of the appellee, the condition of the materials being known by the appellant, but such defectiveness of the materials not being ascertained by the appellee before they had been used in the construction of the building.
Upon the examination of the appellee as a witness in his own behalf, he was asked by his attorney to state what, in the opinion of the witness, "the difference in the value of your house is in its present condition, and would have been if the woodwork and doors had remained in the condition they were when they were first put there." The appellant's objection to this question having been overruled, the witness answered, "$ 700." It was alleged in the answer, and there had been evidence tending to prove, that it was expressly agreed that the articles to be furnished for the construction of the house should be first-class, well seasoned, and suitable for such purpose.
The witness had testified to various imperfections in the house, occasioned by the want of proper seasoning of the articles for finishing, which had been furnished by the appellant, but he had not testified to the value of the house. No objection was made on the ground that the witness had not been shown to be qualified to express an opinion as to the value of the house, but the question was objected to as not being the proper way to prove damages. It is contended on behalf of the appellant that, if the articles furnished were not of the quality stipulated in the alleged contract, the only proper measure of damages would be the difference between the market value of the doors, window frames, and other articles, at the time they were received by the appellee, and the contract price. The measure of relief for a breach of warranty is the difference between the actual value and the value that the article would have had if it had been as warranted, the price paid being evidence of this value. Street v. Chapman, 29 Ind. 142; Ferguson v. Hosier, 58 Ind. 438; Hege v. Newsom, 96 Ind. 426; Blacker v. Slown, 114 Ind. 322, 16 N.E. 621; Bushman v. Taylor, 2 Ind.App. 12, 28 N.E. 97; Green v. Witte, 5 Ind.App. 343, 32 N.E. 214. This general rule of damages is applicable to those ordinary cases where it will afford full compensation for the loss suffered. But the special value to the vendee of the purchased article will be taken into account where it was known to the seller at the time of the sale that the article was being purchased for a special use, and he expressly or impliedly contracted to furnish an article suitable for the special purpose, the controlling principle being to give compensation commensurate with the loss or injury, confining the recovery to damages for such loss or injury as may reasonably be regarded as arising from the breach, or as within the contemplation of the parties when they made the contract as a probable result of a breach thereof. In Page v. Ford, 12 Ind. 46, where a boiler, warranted to be suitable for a particular purpose, proved upon use for such purpose to be unsound, and in consequence thereof the purchaser suffered damage by reason of the destruction of his property situated near the boiler when in use, it was held that such injury should be regarded as a natural and legitimate result of the breach of warranty.
Where a manufacturer sold barrels to be used for the purpose of storing whisky therein,...
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