Gaar, Scott & Company v. Rose

• Decision Date: 07 January 1892
• Docket Number: 78
• Citation: 29 N.E. 616,3 Ind.App. 269
• Court: Indiana Appellate Court
• Parties: GAAR, SCOTT & COMPANY v. ROSE ET AL

29 N.E. 616

3 Ind.App. 269

GAAR, SCOTT & COMPANY v. ROSE ET AL

No. 78

Court of Appeals of Indiana

January 7, 1892

From the Allen Superior Court.

Judgment affirmed, with costs.

J. B Harper, for appellant.

H Colerick and W. S. Oppenheim, for appellees.

OPINION

NEW, J.

This was an action by the appellant to recover of the appellees the price of a clover huller, alleged to have been sold and delivered by the former to the latter.

A written order for the machine was given by the appellees, as follows:

"FORT WAYNE, October 25, 1888.

"The undersigned, residing in Allen county, State of Indiana, this day order of Gaar, Scott & Co., Richmond, Indiana, through , agent, one No. 1 Gaar, Scott & Co. Clover Huller, Elevator and Recleaner Side, for which we agree to pay $ 470 and freight from Richmond, Indiana. Terms as follows: Cash on or before delivery--Birdsell Huller--$ 100; note due December 1st, 1889, for $ 185, with interest at six per cent.; note due December 1st, 1890, for $ 185, with interest at six per cent.,--said notes to be made payable to the order of Gaar, Scott & Co. The undersigned hereby agree to fully settle for the foregoing machinery before it is delivered to them by paying said cash (if any), and giving said notes and mortgage on the said machinery, and also further approved security, as follows: .

"If flax sieves, timothy sieves, or any other sieves, or any other extra or miscellaneous articles, are either interlined above, or noted hereon or ordered in the accompanying letter, they are to be paid for in addition on delivery, at regular prices as per price-list. Notes to be made payable at the First National Bank at Fort Wayne, Indiana. Machine to be loaded on cars at Richmond, Indiana, on or before the 27th day of October, 1888, and shipped to Fort Wayne station, county of Allen, State of Indiana. The above machine to be warranted to do as good work in threshing and cleaning grain as any other machine in the United States, with proper management, and to be of good material, and durable with proper care. But it is understood in this warranty that, in case the machine should fail to do as recommended, notice must be given to the manufacturers and their agent, within one week from the date of starting the same, that the cause may be removed; otherwise they shall not be responsible. Continued use and possession of said articles, after the expiration of the period above named, shall be considered conclusive evidence that they fulfil the warranty in all particulars. Defects or failure in one part shall not condemn any other part. If the above-described machine shall be delivered by any agent of Gaar, Scott & Co., or received by the parties signing this order, or their representative, before full and complete settlement has been made therefor, according to the terms of the above order, all equities and claims under this warranty are thereby waived.

(Signed) "C. ROSE.

"H. D. ROSE."

It is alleged in the first paragraph of the complaint, of which said order is made a part, that the appellant, after the receipt of said order, to wit, on the 27th of October, 1888, delivered the machine therein ordered to the appellees, and that the same was by them accepted; that the appellant has fully performed its part of said contract, but that the appellees have wholly failed and refused to deliver to the appellant said Birdsell Huller, and to execute said notes and mortgage. Wherefore judgment is asked for $ 500.

The complaint is in two paragraphs, but they are not essentially different.

The appellees answered in four paragraphs, the first of which was a general denial. The paragraph of general denial was withdrawn before trial.

Demurrers filed to the second, third and fourth paragraphs of the answer were sustained as to the second and fourth, and overruled as to the third.

The third paragraph of the answer is as follows:

"The defendants, for third paragraph of answer to plaintiff's complaint, say that they admit the execution of the order set out in the complaint, and that they received on October 25th, 1888, a machine from plaintiff under said order; but that, on delivering said machine, the plaintiff expressly waived the clause in said contract that is as follows: 'If the above-described machine shall be delivered by any agent of Gaar, Scott & Co., or received by the parties signing this order, or their representative, before full and complete settlement has been made therefor according to the terms of the above order, all equities and claims under this warranty are thereby waived.' That under the terms of the warranty in said order said machine was to do as good work in threshing and cleaning grain as any other machine in the United States, with proper management; that the defendants, properly managing the same, discovered on the first trial, on the 27th day of October, 1888, that said machine was worthless, and would not perform as good work as any other machine in the United States, but that it failed to hull one-sixth of the grain, and crushed and destroyed another one-sixth, whereas all good machines in the United States of like kind hull all of the grain and do not crush or destroy any portion of the seed; that defendants immediately, on the 3d day of November, 1888, within one week from said trial, notified plaintiff of the defects in said machine; that then plaintiff, on two several occasions, to wit, November 23d, 1888, sent out agents to remedy said defects, but that the same were inherent and incurable, and that said machine did worse work on the trials by said agents that when defendants worked said machine; that because of said machine's failure to fulfil said warranty, it being wholly worthless and valueless, defendants returned on the 30th day of November, 1888, said machine to plaintiff's agent, where they received it, and notified said agent, one Henry Guillion, of their refusal to accept the same, for the reasons aforesaid."

To this paragraph of answer a reply containing three paragraphs was filed, the first of which was a general denial. The substance of the second paragraph of the reply is, that the defendants should be estopped from setting up the alleged breach of warranty, for the reason that at the time of the purchase of said machine the defendants, in their order therefor, agreed that if said machine was delivered to them by any agent of the plaintiff, or received by defendants or their representative before full and complete settlement had been made according to the terms of said order, all equities and claims under the warranty therein made should thereby be waived.

The substance of the third paragraph of the reply is, that the defendants continued in the possession and use of the machine ordered, more than one week after starting the same, without giving notice to the manufacturers and their agent that the machine did not do as recommended.

Upon the issues thus formed the cause was submitted to a jury for trial, who, with answers to interrogatories submitted to them by the court upon the appellant's motion, returned a general verdict for the appellees.

The appellant moved the court for judgment upon the answers made by the jury to the interrogatories, which motion was overruled, as also a motion by the appellant for a new trial, and judgment was then rendered upon the general verdict for the appellees for costs.

The appellant has assigned as error the overruling of the demurrer to the third paragraph of the answer, the overruling of its motion for judgment upon the answers by the jury to interrogatories, and the overruling of the motion for a new trial.

The only alleged errors directly discussed, however, by the appellant's counsel are the overruling of the appellant's motion for judgment upon the answers of the jury to the interrogatories and the overruling of the motion for a new trial.

The interrogatories and answers thereto are as follows:

"1. Did not the defendants purchase of the plaintiff a No. 1 Gaar, Scott & Co. Clover Huller, Elevator and Recleaner Side, at and for the sum of $ 470, and was not the same delivered to the defendants by the plaintiff's agents at Fort Wayne prior to the commencement of this suit? Answer. Yes.

"2. Did not the defendants agree to pay the plaintiff for said machine before it was delivered to them, by delivering to the plaintiff one Birdsell Huller for the sum of one hundred dollars, and to execute their several promissory notes to the plaintiff for the sum of $ 185 each, and to secure said notes by a mortgage...