Haskell & Barker Car Co. v. Allegheny Forging Co.
| Decision Date | 24 May 1910 |
| Docket Number | No. 6,818.,6,818. |
| Court | Indiana Appellate Court |
| Parties | HASKELL & BARKER CAR CO. v. ALLEGHENY FORGING CO. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Porter County; H. B. Tuthill, Judge.
Action by the Allegheny Forging Company against the Haskell & Barker Car Company. Judgment for plaintiff, and defendant appeals. Reversed.
James F. Gallaher, for appellant. William J. Whinery, for appellee.
This is an action brought by appellee to recover a balance of $330.90 alleged to be due from appellant for goods sold and delivered by appellee to appellant. The complaint alleges the amount due, having attached a bill of particulars setting out the dates and amounts. To this complaint an answer of general denial was filed, also an amended counterclaim, to which a demurrer was filed and sustained, and exceptions taken by appellant. The cause was tried by a jury, which returned a verdict in favor of appellee in the sum of $371.20, together with their answers to certain interrogatories. Judgment was rendered on the verdict.
Five errors are assigned, but the two relied upon for reversal are:
The counterclaim is based upon the following correspondence between the appellant and the appellee:
The counterclaim avers the acceptance of the order by the appellee; that a portion of the chains under the order were forwarded to the appellant in compliance with its contract, but that it did not deliver all, although requested to do so; that, by reason of the failure of the appellee to comply with its part of the contract, the defendant was compelled to go into the open market and purchase that portion of the chains which plaintiff had failed to deliver in accordance with the contract, and to pay therefor the sum of $84 in excess of the amount which appellee had agreed to furnish said chains to the appellant; that the appellee was engaged in the manufacture of freight cars in Michigan City, Ind.; that the chains above mentioned were purchased for use in a certain order of cars, and were required for such purpose at a fixed time, which facts were well known to the appellee at the time of making said contract; that by reason of the failure of plaintiff to supply to the defendant such chains in accordance with its contract the manufacturing business of the defendant was delayed and disarranged to its damage in the sum of $100. There is also a claim of damages for expense of telegram and telephone messages.
If this correspondence amounts to a contract complete, then the demurrer to the counterclaim should not have been overruled. Blackstone defines a contract to be an agreement upon a sufficient consideration to do or not to do a particular thing. It is defined by Chitty as a mutual assent of two or more persons competent to contract, founded on a sufficient and legal motive, inducement, or consideration to perform some legal act, or to omit to do anything, the performance of which is...
To continue reading
Request your trial