Himes v. Kiehl

• Decision Date: 03 January 1893
• Docket Number: 36
• Citation: 25 A. 632,154 Pa. 190
• Parties: Himes et al. v. Kiehl et al., Appellants
• Court: Pennsylvania Supreme Court

25 A. 632

154 Pa. 190

Himes et al. v. Kiehl et al., Appellants

No. 36

Supreme Court of Pennsylvania

January 3, 1893

Argued October 4, 1892

Appeal, No. 36, Oct. T., 1892, by defendants, Jacob Kiehl and M. L. Hinderliter, from judgment of C.P. Jefferson Co., Sept T., 1890, No. 266, on verdict for plaintiffs, G. W. Himes and A. J. Himes.

Assumpsit for breach of warranty of steam engine.

At the trial before BARR, P.J., plaintiffs' evidence was that when they purchased the engine in exchange for a "horse power" and a $200 note, defendants guaranteed that it would give all the power needed for threshing purposes, if not they would take it back; that the engine failed to give the power guaranteed and that plaintiffs had notified defendants and offered to return the engine. Defendants' evidence contradicted this in all points.

Plaintiff G. W. Himes, was allowed to testify, under objection and exception, that the engine was not equal in power to do more than one half of the work it was expected to do -- to show the defect in the machinery. [1]

Plaintiff, A. J. Himes, was asked: "Q. How much was it worth for any purpose? A. I understood you to say what it was worth for the threshing purpose."

"Q. For the practical purpose of running an engine? A. That is the way I understood the question."

Objected to as not the proper estimate of damages and as incompetent. Objection overruled and exception. [2]

"Q. How much was it worth for the purpose of running your thresher? A. Not anything I don't think."

The same witness was asked: "Q. How much would this engine, as it was, do, as compared with an engine that would drive that thresher to its full capacity, as guaranteed?"

Objected to as incompetent and irrelevant to show the measure of value in this case. Objection overruled and exception. [3]

The witness testified that it would be two thirds less.

A witness for plaintiff was asked: "Q. Did you see him [plaintiff] working with an another engine, a year afterwards?"

Objected to, that he took this engine without any experience, and the next year, after running this engine a year, his experience taught him how, to some extent, to run an engine the next year.

The Court: Especially if it was running the same thresher, I think it would be evidence.

Objected to as incompetent and irrelevant. Objection overruled and exception. [4]

The witness testified that the next year the same engineer ran the same thresher with another engine very well.

Another witness was allowed to testify, under objection and exception, in effect that another engineer, who had no experience, ran the thresher very well with another engine a year after. [5]

Plaintiff, G. W. Himes, was allowed to testify, under objection and exception: "We run that engine we bought from Kiehl and Hinderliter in 1887 and bought one from McDonald, as agent for the Canton Company, in 1888, and used it until 1889, and then sold it to Crow, Hoover & Barrett, and they were inexperienced men; and they took it and went right ahead with it." [6]

A witness for plaintiff was permitted under objection and exception, to testify that "this power wasn't as good as a four horse power." [7]

Plaintiff was permitted, under objection and exception, to send out with the jury the following statement:

"Value of the horse power,

$100 00

Difference between actual value and guaranteed

value,

150 00

$250 00

Interest from August 20th, 1887,

62 25

Amount,

$312 25"

The objection to sending out this statement was that this is not a case for a statement, that the measure of damages is "what does the evidence show that the engine was worth when sold," and that is a question for the jury to make up from the evidence, and therefore that a statement would be incompetent.

The court charged the jury as follows:

["This is an action to recover damages on a warranty or guaranty of an engine. It is alleged on the part of the plaintiffs that they purchased from the defendants an engine and that they had guaranteed it to do certain work, and that upon trial it failed to do this work, and that they are now entitled to recover damages for the loss of the actual value of this machine.]

"That is the whole case on the part of the plaintiff.

"The defendants allege on their side that the machine was good. That the machine was sold on a five days trial, and at the end of the five days the plaintiffs accepted it as good, and that any failure thereafter was in consequence of the ignorance and misconduct of the plaintiffs in this case. That is substantially the defendants' claim. They allege also that when this settlement took place they gave their notes and that the notes were paid voluntarily, and that that also ends the case.

["Now have the plaintiffs satisfied you, first, that there was a guaranty, and it is not denied substantially on the part of the defendants but what there was a guaranty in the first instance. Was there a guaranty and was this machine defective? And in consequence of this defect were they injured, and was it the fault of the plaintiffs, or not, that the machine wouldn't work? When you get those questions it is all you have to determine in this case.]

"There are some points, and with our answers to those points will constitute what we have to say on the subject."

Plaintiffs' point was among others as follows:

"That if the jury believe from the evidence that the defendants guaranteed the plaintiffs that the engine would do the required work, by furnishing sufficient power to drive the separator as fast as necessary to do good work, and on the strength of said guaranty they took the engine, giving therefor a horse power and their note for $200, which they paid, and, after a fair trial, said engine failed to do the work as guaranteed, the plaintiffs would be entitled to recover the difference between the actual value of the engine and its value as guaranteed, and the value of the horse power, with interest from the date of the failure of the engine to perform the work. Answer: This point is affirmed. We believe that to be the law if you find the facts as stated. If you find that there was a guaranty on the part of the defendants and that the guaranty continued and that this machine was defective, and that the plaintiffs were bound to sell it for a price less than they paid for it -- it being worthless to them -- I think they would be entitled to recover the difference in the value, if you find the facts as stated and to be hereafter stated." [8]

Defendants' points were among others as follows:

"1. That if the jury find from the evidence that at the giving of the notes for the purchase of the engine and interest of the defendants in the separator that they would guarantee that the engine would give sufficient power to run the separator, or that they would take it back, and the plaintiffs, without complaint or offer to return the engine, continued to use it, and afterwards sold it without an offer to return it, that then they cannot recover in this action and their verdict should be for the defendants. Answer: This point we refuse. They were not bound to return this machine, and they of course having kept the machine would be bound to allow to the defendants the actual value, instead of the price sold at. They were not bound to rescind the contract, as a matter law, when they discovered the defects in this machine." [9]

"2. That the evidence in this case, showing that the sale of the engine and the interest of the defendants in the separator and the giving of notes, were all at one time, then they must be considered as one transaction and the jury will have no right to separate them. Answer: This point we also refuse, because it is a question for you to determine, as to this contract. There is considerable dispute about it on different views, by different witnesses, as to whether it was one entire contract or whether there were two separate bargains made. That is for you to determine, whether there was two or whether it was one transaction, and as this point only refers to the contract being indivisible we say it is for you; it is a question for you and not for the court." [10]

"4. That if the jury find from the evidence that the plaintiffs in this action presented their petition to the court of common pleas of Jefferson county, in No. 168, May Term, 1889, to open the judgment in that case, which was entered and confessed on the note given by plaintiffs to defendants in the transaction now in suit, in which petition they set up the same facts upon which they sought to have that judgment opened, and that a rule was granted and the proceeding on said judgment, and a writ of execution issued thereon, and after the stay of said writ the plaintiffs paid the full amount of the claim and the rule to show cause thereon was discharged, then they are estopped from setting up the same matters in this action, and upon which their right to recover is based, and if the jury so find the verdict of the jury should be for the defendants. Answer: Now this point is refused, because in this case, although a rule to show cause was granted there was no hearing on it; no depositions taken and no argument was held before the court so far as the records in evidence show, but the record of the court shows that the attorneys appeared and asked the court to discharge the rule, and that in our opinion would not amount to any more than a discontinuance in an ordinary suit would. It is not an adjudication, and the doctrine of res adjudicata would not apply in this case, we believe. If there had been a hearing and a judgment upon that we think it would have ended this case." [11]

Verdict and judgment for plaintiff for $253.87. Defendants appealed.

Errors assigned were (1-7) rulings on...