E. H. Purcell & Co. v. Agricide Corp., 18676

• Decision Date: 17 May 1956
• Docket Number: No. 18676,18676
• Citation: 134 N.E.2d 233,126 Ind.App. 476
• Parties: E. H. PURCELL & COMPANY, Inc., Appellant, v. AGRICIDE CORPORATION, Appellee.
• Court: Indiana Appellate Court

Page 233

134 N.E.2d 233

126 Ind.App. 476

E. H. PURCELL & COMPANY, Inc., Appellant, v. AGRICIDE CORPORATION, Appellee.

No. 18676.

Appellate Court of Indiana, In Banc.

May 17, 1956.

C. A. Lincoln, James P. Murphy, Ft. Wayne, for appellant.

James W. Jackson, Ft. Wayne, for appellee.

CRUMPACKER, Judge.

The appellee sued the appellant on an open account alleging sales of its products to the appellant at various times from June 3, 1949, to February 28, 1950, in a total sum of $6,307.60 against which credits were allowed in the sum of $5,084 leaving a balance due of $1,223.60. The appellant answered in compliance with Rule 1-3 and in addition filed a cross-complaint alleging that certain items purchased from the appellee were not as represented but on the contrary were worthless and by their use it suffered damages in the sum of $2,433.48. Trial was to the court and resulted in a finding for the appellee on its complaint in the sum of $773.60 and against the appellant on its cross-complaint. Judgment was entered accordingly.

The appellee is the developer and owner of a system of pest control for flying and crawling insects known as the 'Turbocide System of Control.' In connection with this system it manufactures a certain chemical known as M-50 and a device for its application known as a generator. M-50 is represented as a fly control insecticide, the use of which is effective for 90 days. The appellee issues franchises to dealers or operators authorizing their use of 'Turbocide System of Control' within certain specified territories and in connection therewith sells them the required insecticides. The generators however are not sold to the operators but merely leased to them on either a monthly rental basis of $7.50 per month or on what the appellee calls a permanent charge of $60 per generator. During the period of the account here involved, the appellant was a franchise operator of the 'Turbocide System of Control' in Fort Wayne and vicinity and as such had 20 generators in his possession upon the monthly rental basis. The account sued upon represents a charge for generator rentals of $2,295 which the appellant contends is an overcharge of approximately $1,200. The balance of the account is largely made up of charges for M-50 purchased by the appellant and used by it in the conduct of its business.

The evidence and briefs of counsel indicate that this controversy revolves, almost entirely, around an item of $1,200 which the bill of particulars attached to the appellee's complaint shows was credited to the appellant on November 8, 1949. The appellee contends that this credit was extended to the appellant in full settlement of its claim for damages resulting in the use of defective M-50 for which it later sued by way of cross-complaint in this action. On the other hand, the appellant insists that said credit was given to adjust the overcharge for generator rentals as above indicated and therefore the court's finding against it on its cross-complaint was in total disregard of the wholly undisputed evidence that it was damaged to the extent of $2,433.48 through its use of M-50 which the appellee admits was unsuitable for the use and purpose for which it was sold.

Obviously the court accepted the appellee's version of the purpose for which the disputed credit was given as it found against the appellant on its cross-complaint, the only defense to which was said alleged compromise settlement. The finding being negative, we are powerless to disturb it because of the facts involved unless the pertinent evidence is all one way and forces the conclusion that the...