Fuller v. Schroeder

• Decision Date: 06 January 1887
• Citation: 20 Neb. 631,31 N.W. 109
• Parties: FULLER AND ANOTHER v. SCHROEDER.
• Court: Nebraska Supreme Court

20 Neb. 631

31 N.W. 109

FULLER AND ANOTHER

v.SCHROEDER.

Supreme Court of Nebraska.

January 6, 1887.

Syllabus by the Court.

An action appealed from the county court to the district court must be tried on substantially the same issues as were presented in the county court, unless some matter, such as payment, release, etc., has arisen since the former trial.

Where change of cause of action does not appear on the face of the petition, it may be set up by the answer.

Evidence examined, and held insufficient to sustain the verdict.

Where a reaping-machine was sold, with leave to test the same by using it for one day, held, that the word “day” is to be understood with reference to the usage of farmers in working with such machines.

Where a machine was sold conditionally, and notes given for the purchase price, which notes were to be returned in case the machine failed to comply with the warranty, held, that the return of the machine, if properly made, was a sufficient demand of the notes.

Error to district court, Butler county.Myers, Evans & Steele, for plaintiffs in error, Fuller and another.

The action, as originally commenced in the county court, was upon an account; in the district court, it was on a written contract of warranty. Such an amendment is not allowable, except by consent. O'Leary v. Iskey, 12 Neb. 137; S. C. 10 N. W. Rep. 576. See, also, Wood v. O'Ferrall, 19 Ohio St. 427;Bisher v. Richards, 9 Ohio St. 498.

The form the action was allowed to take in the district court was in the nature of trover and conversion. In such cases, a demand is necessary, unless the original taking is tortious, or there has been an actual conversion by the defendant. 6 Wait, Act. & Def. 205; Nay v. Crook, 1 Pin. 547;Parker v. Middlebrook, 24 Conn. 207; Carter v. Kingman, 103 Mass. 517;Clark v. Rideout, 39 N. H. 238;Lee v. McKay, 3 Ired. 29.

W. H. Fuller and Billingsley & Woodward, for defendant in error, Schroeder.

Where the facts remain the same, the form of the action may be changed in the appellate court. Austin v. Hayden, 6 Ohio, 388;O'Neal v. Blessing, 34 Ohio St. 33.

The only way in which the defendant can, in the appellate court, object to the change in the form of action, is by moving to strike out the petition, and not by answer. Thomas v. Pennrich, 28 Ohio St. 55;Wilson v. Wilson, 30 Ohio St. 372.

MAXWELL, C. J.

The plaintiff alleges in his petition that on July 16, 1882, said plaintiff conditionally purchased of defendants a Walter A. Wood harvester and binder, under an express warranty made by defendants, a copy of which warranty is hereto attached, marked “A,” whereby defendants warranted said machine to be made of good material, and capable of doing first-class work in cutting, binding, and saving grain, that being the purpose for which said machine was intended; and that the plaintiff was to have one day in which to give said machine a fair trial, and, if said machine did not work properly, then, and in that case, said plaintiff was to notify the agent of said defendants of the defects of said machine, and if the agents of the defendants could not and did not remedy said defects, and cause the said machine to work in a proper manner, then, and in that case, this plaintiff was to return the said machine to said defendants; that said plaintiff, after giving said machine one day's trial, and the said machine wholly failing to do the work which it was warranted to do, to-wit, cut, bind, and save grain in a satisfactory manner, said plaintiff notified the agent of said defendants that said machine would not work as represented. The said agent failing to remedy the defects, or to so adjust the said machine that the same would work in a satisfactory manner, or in a manner which it was warranted to do, and the said machine being wholly worthless for the purpose for which it was intended, and for which plaintiff purchased it, and of no value whatever to the said plaintiff, the said plaintiff returned said machine to the agent of said defendants, and demanded a return of the money and notes, but said defendant's agent refused to so return; that said plaintiff, in payment for said machine, paid to defendants the sum of $50 in money, and executed and delivered to said defendants his promissory notes to the amount of $262.50, payable at different times and dates, the exact dates of the several payments being unknown to the plaintiff; that when said plaintiff returned said machine he was entitled, under the terms of said conditional sale, to a return of the said sum of $50 in money, and also to the return of his promissory notes to the amount of $262.50, but defendants refused to so return them, but retained the same, and converted the said money and the said notes to their own use; that said notes drew interest at 10 per cent. from date, whereby defendants became indebted to plaintiff in the sum of $50, with 7 per cent. interest from July 16, 1882, and $262.50, with 10 per cent. interest from July 16, 1882.

The following is a copy of Exhibit A:

“ULYSSES, Neb., June 16, 1882.

Whereas, J. C. Schroeder has this day given his order for one 6 1/2-foot cut harvester and binder. Said machine is warranted to be well made, of good material, and capable of doing first-class work. Purchaser shall have one day to give it a fair trial, and, if it does not work, shall give notice to G. Babson, Jr., and allow him to get it, and remove defect; and, if it then does not work well, it shall be returned free of charge to Ulysses.

G. BABSON, Jr., Agent.”

Defendants below (plaintiffs in error) filed the following answer:

“(1) Come now the defendants, and for answer deny each and every allegation in said petition contained, except such as are hereinafter admitted; admits the sale of the machine, the execution and delivery of the warranty, and that the contract price therefor was as alleged. Defendants allege that said machine was in every respect as in said warranty it was represented and agreed, both in material, workmanship, and capability of doing the work for which it was in said warranty intended and sold.

(2) For further answer, defendants allege that said action was brought into this court by appeal from a judgment rendered by the county court of Butler county, Nebraska, against defendants and in favor of plaintiff, and that the petition of plaintiff was filed herein in the prosecution of said case so appealed to this court by defendants; that said action so tried in and appealed from said county court was an action on an account, for money had and received, as shown by plaintiff's bill of particulars, as therein filed, a copy of which is attached hereto, marked ‘Exhibit A;’ that defendants answered said bill of particulars in said court by general denial, a copy of which answer is attached hereto, marked ‘Exhibit B;’ that, upon the issues thus joined in said county court, the said cause was there tried on January 3, 1883, and a judgment therein rendered against defendants for $362.50, and costs; that defendants duly appealed from said judgment to this court by filing their appeal-bond within time, and having the same approved, and the appeal allowed, and by filing a transcript at the proper time in this court, and having the said cause docketed as required by law; and on May 15, 1883, this court entered an order requiring plaintiff to file his petition in said cause within 60 days from that date; and on July 13, 1883, said plaintiff filed his pretended petition in said cause, to which the court sustained a general demurrer; and on December 19, 1883, plaintiff was granted permission to file an amended petition in said action so appealed as aforesaid; and on January 3, 1884, he filed his amended petition, in which he sets forth, substitutes, and pleads another and entirely different cause of action from the one pleaded, tried, and brought to this court by appeal in and from said county court as aforesaid, and fully abandons said cause of action so as aforesaid tried in and appealed from said county court, which said cause so appealed to this court is the sole and only action pending in this court between said parties; that said amended petition states only, as a cause of action, an alleged breach of a written warranty, which will more fully appear from said amended petition, to which reference is made as a part of this answer.

EXHIBIT A.

The plaintiff complains of the defendant for that on July 16, 1882, defendants were justly and truly indebted to plaintiff in the sum of $312.50, for money had and retained by defendants to and for use of plaintiff. Said defendants have not paid the same, nor any part thereof, and there is now due from defendants to plaintiff the sum of $362.50, with interest thereon from July 16, 1882.

EXHIBIT B.

Comes now said defendants, and, for answer to plaintiff's petition, deny each and every allegation therein named, and ask for proof.”

The plaintiff below (defendant in error) demurred to the second count of the answer upon the ground that the facts stated therein were not sufficient to constitute a defense, and the demurrer sustained. In this we think the court erred.

An appeal from the county court to the district court necessarily brings up the case for trial in the district court upon substantially the same issues as were presented in the county court, unless some matter had arisen since the trial, such as payment, release, etc. O'Leary v. Iskey, 12 Neb. 136;S. C. 10 N. W. Rep. 576;Union Pac. Ry. Co. v. Ogilvy, 18 Neb. 638;S. C. 26 N. W. Rep. 464. This rule is admitted by the attorneys for the defendant in error, but they say that the remedy of the plaintiffs in error was by motion to strike the petition from the files, and that, having filed an answer in the case, they waived the defect. Where the objection is apparent on the face of the petition, a motion to strike from the files would be the proper remedy; but there are many cases where the objection can be made available only by...