Fleetwood v. Dorsey Machine Co.

• Decision Date: 27 May 1884
• Docket Number: 11,147
• Parties: Fleetwood et al. v. The Dorsey Machine Company
• Court: Indiana Supreme Court

95 Ind. 491

Fleetwood et al. v. The Dorsey Machine Company

No. 11,147

Supreme Court of Indiana

May 27, 1884

From the Decatur Circuit Court.

Judgment affirmed.

J. K Ewing and C. Ewing, for appellants.

J. D Miller and F. E. Gavin, for appellee.

OPINION

Elliott C. J.

The foundation of the appellee's complaint is the following contract:

"Greensburgh, Ind., August 4, 1880.

"On or before the 1st day of September, 1881, we promise to pay to the order of the Dorsey Machine Company, one hundred and fifty dollars with interest at six per cent. from date, and with annual interest at eight per cent. from maturity on the amount then due, until paid, and attorney's fees, payable without relief from valuation or appraisement laws, at the banking office of the Citizens National Bank. The express condition of the sale and purchase of the Dorsey Reaper and Mower, for which this note is given, is such that the title, ownership, or possession does not pass from the Dorsey Machine Company until this note and interest is paid in full; and the Dorsey Machine Company have full power to declare this note due, and to take possession of said Dorsey Reaper and Mower at any time they may deem themselves insecure, even before the maturity of the note. And it is further agreed that this note shall be deemed due on demand if the maker attempts to move out of the county where he now resides."

There was no error in sustaining appellee's demurrer to the fifth paragraph of appellants' answer, for the reason that the same evidence which it would have entitled them to give was admissible under other paragraphs of the answer which were left standing.

The trial court may, if it so elects, receive interrogatories to be propounded to the jury, after the commencement of the argument. It is not bound to receive them, but may, in its discretion, do so. Truitt v. Truitt, 37 Ind. 514; Glasgow v. Hobbs, 52 Ind. 239.

The instructions given by the court are not in the record, and we can not say that those refused were not properly embodied in those given. In order to make a question on the ruling refusing instructions, it is necessary to incorporate in the record all the instructions given by the court.

It will not do to put in the record a detached part of the instructions. The rule is that instructions are to be construed together and not separately.

The contract on its face shows a consideration and one sufficient to support it. Where parties by their agreement fix a consideration, and the one party gets all he contracted for, and the other yields all he agreed to yield, the courts will sustain the contract. If any other rule were adopted, it would result in courts making contracts for the parties, and this would be an unjustifiable usurpation of authority. Wolford v. Powers, 85 Ind. 294; S. C., 44 Am. R. 16; Hardesty v. Smith, 3 Ind. 39; Harvey v. Dakin, 12 Ind. 481; Baker v. Roberts, 14 Ind. 552; Smock v. Pierson, 68 Ind. 405; S. C., 34 Am. R. 269; Neidefer v. Chastain, 71 Ind. 363; S. C., 36 Am. R. 198; Williamson v. Hitner, 79 Ind. 233. The complaint, therefore, shows a valid contract, and as the answers of the appellants were all affirmative, it devolved upon them to make out some one of the defences pleaded.

The first paragraph of the answer sets forth a written warranty, and, in order to sustain this paragraph, it was necessary to show that the warranty was in writing. Johnston Harvester Co. v. Bartley, 81 Ind. 406; Morgan v. Gaar, Scott & Co., 64 Ind. 213. A pleading founded on a written contract is not sustained by evidence of a verbal one.

The second paragraph of the answer avers that the consideration of the contract was the sale and delivery of a Dorsey Self-Rake Reaper and Mower, which was warranted to be constructed of certain specified materials and to work in a specified manner, but that it did not work as warranted, nor was it constructed of the materials described in the warranty, and that the appellants gave notice of the breach of warranty and tendered back the machine.

It has been very frequently decided by this court, that a pleading is to be construed according to its general scope and tenor, and that mere general conclusions from facts specifically pleaded can not have controlling effect. Petty v. Trustees, etc., ante, p. 278; Johnston v. Griest, 85 Ind. 503; Mescall v. Tully, 91 Ind. 96; Platter v. City of Seymour, 86 Ind. 323; Jackson School Tp. v. Farlow, 75 Ind. 118; Neidefer v. Chastain, supra; Judy v. Gilbert, 77 Ind. 96 (40 Am. R. 289); Kimble v. Christie, 55 Ind. 140. The paragraph of the answer under immediate mention is one for rescission of contract, and a very material fact alleged, and which it was necessary for appellants to prove, was that they had tendered back the machine sold and delivered to them.

It is perfectly well settled that where a party seeks a rescission, he must tender back the property received by him if it be of value. Robards v. Marley, 80 Ind. 185; Vance v. Schroyer, 79 Ind. 380; DeFord v. Urbain, 48 Ind. 219.

This paragraph of the answer could only be sustained, even giving the appellants the benefit of the greatest presumption that can be indulged in favor of the pleading, by evidence that the article had been tendered back to the vendor, or that it was without value. Wynn v. Hiday, 2 Blackf. 123.

The fourth paragraph of the answer also admits the sale and delivery of the reaper, but avers that there was a verbal contract to the effect that the reaper should operate in a certain manner, and that this verbal agreement was the sole consideration of the contract. In order to sustain this paragraph it was necessary for the appellants to prove that the consideration of the note was the verbal contract described.

Where a defendant admits the cause of action set forth in the complaint, he must prove one or more of the defences he sets up in avoidance, or fail. He can not insist that he might have recovered upon some other issue than that tendered by his pleadings, for a party can only recover upon the issues his pleadings make. The chief purpose of pleading is to secure definite issues for trial, and a judgment can only be demanded upon matters within the issues. As the plaintiff's claim was confessedly...