F.C. Austin Mfg. Co. v. Clendenning

• Citation: 21 Ind.App. 459,52 N.E. 708
• Parties: F. C. AUSTIN MFG. CO. v. CLENDENNING et al.
• Decision Date: 25 January 1899
• Court: Court of Appeals of Indiana

21 Ind.App. 459

52 N.E. 708

F. C. AUSTIN MFG. CO.

v.CLENDENNING et al.

Appellate Court of Indiana.

Jan. 25, 1899.

Appeal from circuit court, Jefferson county; P. E. Bear, Judge.

Action by Oliver S. Clendenning and another against the F. C. Austin Manufacturing Company and another. From a judgment in favor of plaintiffs, sustaining the service on defendant company, and overruling its demurrer to the complaint, it appeals. Reversed.

Wm. D. Ward, for appellant. F. M. Griffith, for appellees.

BLACK, C. J.

The appellant has assigned as error the overruling of its motion to set aside the service of process upon it. In the bill of exceptions by which it was sought to save the appellant's exception to this ruling, the motion and affidavits in support thereof are not set out. They are mentioned, and at the places where they should have been, but are not, copied into the bill, the words “Here insert” are written in parentheses. That they cannot thus be made a part of the record, though copied elsewhere in the transcript by the clerk, is a matter so often decided that we need only mention it.

The complaint of the appellees, Oliver S. Clendenning and Joseph H. Hart, was against the appellant and one Benjamin L. Blair, spoken of in the complaint as an agent of the appellant. A demurrer of said Blair to the complaint was sustained, and he had judgment in his favor. The demurrer of the appellant to the complaint for want of sufficient facts was overruled, and this is assigned as error. In the complaint it was shown that said Clendenning & Hart contracted with the appellant for one No. 4 Austin rock crusher, for which said Clendenning & Hart executed their note, payable to said Blair, for $1,000, due 90 days after date, payable at Vevay Deposit Bank of Vevay, Ind., which note was by said Blair at once transferred to the Merchants' National Bank of Indianapolis; that Clendenning & Hart executed a written order addressed to the appellant. The order is set out in the body of the complaint. It was dated September 25, 1895, at Vevay, Ind.; and by it the appellant, at Chicago, Ill., was requested to ship to Clendenning, at Vevay, about the 1st of October, 1895, one No. 4 Austin rock crusher, for Clendenning & Hart, who, by the terms of the order (which was signed by them), agreed to pay freight charges, and, at their own expense for power, cartage, assistance, etc., give it a fair and thorough trial, under conditions stipulated by the F. C. Austin Manufacturing Company, and under direction of its agent, should it send one. Clendenning & Hart, by the terms of the order, further agreed that, if the crusher should equal the capacity of 15 to 20 tons per hour, they would pay the appellant, or order, $1,000, with interest at 6 per cent., payable in 90 days; that, if the crusher should not do the work so represented, Clendenning & Hart should notify the appellant, in writing, at Chicago, of such failure, and if, within 30 days from the receipt of said notice, the appellant should fail to make said crusher do the work so represented, then the appellant agreed to refund the freight charges, and receive back the crusher at the railroad station from which it was taken, and cancel said contract. It was stipulated in the order that it embodied the entire understanding, and that it was not subject to countermand, and was not to be affected by any verbal agreements. It was further alleged in the complaint that the crusher would not, with ordinary diligence, and with a sufficient force, break from 15 to 20 tons of rock per hour; that the pitman was not properly adjusted; that there was a defect in the material, by reason of which the same broke; that the elevator frequently broke, and that many other parts were defective; that, acting under the belief that the crusher would work properly, and would be fully up to the warranties and representations made by the defendant, said Clendenning & Hart made all arrangements for the crushing of the stone for 4 1/2 miles of a certain road; that they caused to be hauled 15,000 perch of rock at convenient places along the road, to be crushed by the crusher; that, upon the arrival of the crusher at the wharf boat at Vevay (the date not being stated), they paid all freight and wharfage, and caused the crusher to be...