Hitz v. Warner, 6,828

• Docket Nº: 6,828
• Citation: 93 N.E. 1005, 47 Ind.App. 612
• Case Date: February 14, 1911
• Court: Court of Appeals of Indiana

93 N.E. 1005

47 Ind.App. 612

HITZ ET AL.
v.
WARNER ET AL

No. 6,828

Court of Appeals of Indiana

February 14, 1911

Rehearing denied May 16, 1911.

From Superior Court of Madison County; Cassius M. Greenlee, Judge.

Action by Samuel Warner and another against George Hitz and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

John W. Lovett and G. B. Slaymaker, for appellants.

Bagot & Pence, for appellees.

OPINION [93 N.E. 1006]

[47 Ind.App. 613] FELT, J.

Suit for damages for an alleged breach of a warranty in the sale of personal property resulting in judgment in favor of appellees for $ 219, from which this appeal is taken.

The errors relied upon are (1) the overruling of a demurrer to each paragraph of complaint; (2) insufficiency of the complaint upon the facts alleged; (3) insufficiency of the substituted complaint upon the facts alleged; (4) the overruling of appellants' motion for a new trial.

The original complaint was in two paragraphs, and was lost after the ruling upon the demurrer, and upon order of the court a substituted complaint in one paragraph was filed.

The material averments of the substituted complaint are as follows: That on or about October 2, 1906, appellants, by one of their agents, offered to sell to appellees a carload of potatoes, consisting of about six hundred bushels, at fifty cents a bushel; that appellants warranted said potatoes to be of good quality, and that they would keep in appellees' [47 Ind.App. 614] cellar throughout the winter next following the sale; that in consideration of said warranty appellees agreed to accept the potatoes and pay for them upon their delivery at the town of Summitville; that on or about October 8, 1906, appellees received said carload of potatoes, consisting of 565 bushels and, relying upon said warranty, accepted and paid for them; that said potatoes were not of good quality, were not good keepers, but were immature and green potatoes, and did not keep in appellees' cellar and storerooms; that appellees relied upon said warranty--that said potatoes were of good quality--placed them in their cellar, and within four weeks thereafter they decayed and became absolutely worthless, and appellees were compelled to remove them from their cellar; that appellees were not experienced in judging the keeping qualities of potatoes, and the defects which caused said potatoes to rot were not such as were observable by a person of ordinary intelligence, without experience in handling potatoes; that they paid therefor the sum of $ 282.37, and performed all the conditions of said contract of purchase to be by them performed; that if said potatoes had been of the kind and quality warranted they would have been of the value of the purchase price aforesaid; that on account of said defects they were of no value whatever, and said warranty was thereby broken and appellees were damaged in the sum of $ 300.

The substituted complaint for all purposes of the case stands as the original complaint, and, in the absence of the original complaint, the ruling upon the demurrer will be determined upon the allegations of the substituted complaint.

The substituted complaint shows a parol contract for the sale of potatoes, accompanied by an express warranty as to their keeping qualities, the delivery and acceptance of the potatoes, payment therefor [93 N.E. 1007] by the purchaser, and a breach of the warranty, resulting [47 Ind.App. 615] in damages. These averments are clearly sufficient to state a cause of action. Lincoln v. Ragsdale (1893), 7 Ind.App. 354, 31 N.E. 581; Shirk v. Mitchell (1894), 137 Ind. 185, 189, 36 N.E. 850; Aultman, Miller & Co. v. Seichting (1890), 126 Ind. 137, 25 N.E. 894; Jones v. Quick (1867), 28 Ind. 125; Smith v. Borden (1903), 160 Ind. 223, 66 N.E. 681.

The claim that the case is within the statute of frauds cannot be sustained, for the reason that it is well settled that where personal property is sold by parol contract, and the agreement is thereafter executed by the delivery and acceptance of the property and payment therefor, the case, though it may have been originally within the statute of frauds, is, by the execution of the contract, taken out of its operation.

Section 7469 Burns 1908, § 4910 R. S. 1881, provides that receipt of part of the property is sufficient to make the contract binding without a written agreement.

The facts averred in this complaint show not only the receipt of "part of such property," but of all the property purchased. The statute of frauds therefore has no application to the case made by the complaint before us. Fletcher v. Southern (1908), 41 Ind.App. 550, 84 N.E. 526; Barkalow v. Pfeiffer (1871), 38 Ind. 214.

This disposes of all the errors assigned, except the ruling upon the motion for a new trial. Specifications one to four, inclusive, of the motion for a new trial assert that "the damages are excessive," that the decision of the court is not sustained by the evidence, and that it is contrary to law. The other specifications of the motion, to and including the forty-eighth, complain of the rulings of the trial court in the admission and exclusion of certain testimony.

It appears from the evidence that after the parol agreement of sale...