Fuller v. Curtis

• Decision Date: 18 October 1884
• Docket Number: 10,292
• Citation: 100 Ind. 237
• Parties: Fuller v. Curtis et al
• Court: Indiana Supreme Court

100 Ind. 237

Fuller v. Curtis et al

No. 10,292

Supreme Court of Indiana

October 18, 1884

Petition for a Rehearing Overruled April 25, 1885.

From the Elkhart Circuit Court.

H. D Wilson and W. J. Davis, for appellant.

J. H Baker and J. A. S. Mitchell, for appellees.

OPINION

Colerick C.

The appellees sued the appellant for the price of a table-rake and attachments for a reaper. The complaint consisted of three paragraphs. The first averred that they had on the 1st day of July, 1881, sold and delivered the rake and attachments to the appellant for $ 100, one-half of which sum he promised to pay on the 1st day of October, 1881, and for the other half execute his note payable on the 1st day of October, 1882, with interest; that he had refused to comply with his said promise, and that by reason thereof said sums are due and remain unpaid, etc. The second averred the sale and delivery of said property for $ 100 upon the appellant's promise to pay one-third of the price in cash on the 1st day of October, 1881, and to execute his notes for the residue, one for one-half thereof, payable on the 1st day of October, 1882, and the other for the balance, payable on the 1st day of October, 1883, both with interest and attorney fees. The third was the common count for property sold and delivered.

The appellant filed an answer of three paragraphs. The first was a general denial. The second averred that the appellees were not, but that Aultman, Miller & Co. were, the real parties in interest. The third, as a partial answer to the cause of action stated in the third paragraph of the complaint, averred, in substance, that on the 1st day of July, 1881, Aultman, Miller & Co., who manufactured the rake and attachments mentioned in said paragraph, through the appellees, as their agents, sold the same to the appellant, and agreed to adjust the same to a reaper he then owned, so as to enable him to properly cut and save forty acres of wheat which the appellees knew were then growing upon his farm, in consideration of which he promised to pay them $ 65 two years from that time; that said Aultman, Miller & Co., though often requested, did not adjust said rake and attachments to said reaper, nor could they do so, nor could the appellant do so himself, or procure any one else to properly adjust the same, so as to properly cut and save his wheat, in consequence of which he was damaged $ 50. Wherefore, etc.

The appellant also filed a counter-claim, in which he averred, in addition to the facts alleged in the third paragraph of his answer, that when the appellees failed to adjust said rake and attachments, the appellant's wheat was ripe, and as appellant could get no other machine, and had no other means with which to cut said wheat, he was compelled to use his reaper with said rake and attachments improperly adjusted, or suffer a greater loss; that in its use a part of the wheat was not cut, but broken down, and a portion that was cut was lost and could not be saved; that in consequence of the use of said machine, so improperly adjusted, the appellant lost eighty bushels of wheat of the value of $ 80. Wherefore, etc.

A demurrer was sustained to this pleading, and a reply was filed to the second and third paragraphs of the answer. A trial was had, and a verdict in favor of the appellees for $ 40, with answers to interrogatories, was returned. A motion for a new trial, and a motion to tax the costs of the action to the appellees, were overruled, and judgment was rendered upon the general verdict. These last rulings are assigned as error.

The demurrer to the counter-claim was, we think, properly sustained. The loss of the appellant's wheat caused by the voluntary use of a machine improperly adjusted must be borne by himself, as the consequences did not necessarily arise from a breach of the agreement to properly adjust the rake and its attachments. The damages to be recovered must be the natural and proximate consequences of the breach of the agreement. 2 Greenl. Ev., section 256; 1 Sedgw. Dam., p. 66; Loker v. Damon, 17 Pick. 284; Cline v. Myers, 64 Ind. 304; Prosser v. Jones, 41 Iowa 674. In the case last cited, the defendant agreed to give the plaintiff $ 100 for a threshing machine and thresh his wheat at any time within four days...