Flint v. Cook

• Citation: 1 N.E. 633, 102 Ind. 391
• Case Date: June 16, 1885
• Court: Supreme Court of Indiana

102 Ind. 391

1 N.E. 633

Flint and others

v.Cook.¹

Supreme Court of Indiana.

Filed June 16, 1885.

Appeal from Hancock circuit court.

J. H. Mellett and Marsh & Cook, for appellants.

New & Jones, for appellee.

Mitchell, C. J.

This suit was brought to recover the price of a windmill, which it is alleged was sold and delivered by Flint, Milling & Co., of Kendallville, Indiana, to James M. Cook. The contract of sale is in writing, and contained, among other stipulations, the following: “If you accept this order and ship me the goods ordered above, it is with the distinct understanding, and is a part of this contract, that if the windmill does not work well for sixty days after erected, I am to notify you and give you ninety days after receipt of such notice by you in which to remedy the defect, and if you cannot make it work well, you are to remove the windmill and release me from the amount which I have paid for said mill as above stipulated. A defect in any one article used on this job to affect price and purchase of that article only.” On the reverse side of the contract there was written the following stipulation, which was signed by the plaintiff's agent: “The condition of this sale is that D. H. Goble erects the mill, and after 90 days, if the mill suits James M. Cook, he agrees to settle on the conditions named in within order.”

To the complaint, with which the written contract was filed as an exhibit, and upon which no question is made, there was an answer in four paragraphs, one of which was the general denial, and three special answers. The material part of the second paragraph set up, as a ground of defense, the following: “That said windmill did not work well at any time after erected, and that within a reasonable time after the expiration of 60 days after the erection of said mill, to-wit, within 30 days thereafter, the defendant notified the plaintiff and his agents that said mill did not work well, and demanded that the plaintiff remove the same from his premises, etc. The third paragraph, after averring the contract, and modification thereof, as contained in the stipulation on the reverse side, and the delivery of the mill to defendant, alleges that thereafter said Goble, agent as aforesaid, undertook to erect said mill, but wholly failed to cause the same to work 60 days, or any other period of time, or to work at all; that said mill, therefore, did not suit the defendant,-all of which the plaintiff had notice before the institution of this suit.” This paragraph also avers that the defendant, before the institution of this suit, notified plaintiff to remove the mill, and release him from his contract. The fourth paragraph avers the contract, and that the plaintiff “thereunder constructed, or pretended to construct, the certain mill, but the same never did work, never was of any use or value to the defendant, because the same would not pump water for stock, nor do any other thing for which it was intended when purchased;” and it is alleged that in consequence of such failure the consideration for the contract failed.

Separate demurrers were filed and overruled to each of the foregoing answers, and these rulings are assigned and insisted upon as errors. For the reason stated in the case of McClamrock v. Flint, No. 11,752, the second paragraph of answer was palpably bad. To say that the windmill did not work well is not an allegation of any defect in the mill. It is nothing more than the expression of an opinion without stating any facts upon which an issue can be made. Under the contract, as we interpret it, the sale was upon the conditions that the plaintiffs should furnish and erect the windmill; that when erected it should work to the satisfaction of the defendant for the period of 90 days. If, at any time within 90 days from the time of its erection, it should fail to work satisfactorily on account of any defect in its construction, or other imperfection, the plaintiffs were to be notified; when, if, within the 90 days succeeding such notice, they should fail to remedy the...