Hitz v. Warner

• Citation: 47 Ind.App. 612,93 N.E. 1005
• Decision Date: 14 February 1911
• Docket Number: No. 6,828.,6,828.
• Parties: HITZ et al. v. WARNER et al.
• Court: Court of Appeals of Indiana

47 Ind.App. 612

93 N.E. 1005

HITZ et al.

v.WARNER et al.¹

No. 6,828.

Appellate Court of Indiana, Division No. 1.

Feb. 14, 1911.

Appeal from Superior Court, Madison County; Cassius M. Greenlee, Judge.

Action by Samuel Warner and others against George Hitz and others. Judgment for plaintiffs, and defendants appeal. Affirmed.Lovett & Slaymaker, for appellants. Bagot & Bagot and Luther F. Pence, for appellees.

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 was filed, but in one paragraph.

The material averments of the substituted complaint, for the purposes of this appeal, are: That on or about October 2, 1906, the appellants, by one of their agents, offered to sell to the appellees a car load of potatoes, consisting of about 600 bushels, at 50 cents per bushel, and that appellants warranted said potatoes to be of good quality, good keepers, and that they would keep in the appellees' cellar throughout the winter next following the sale; that in consideration of said warranty appellees agreed to accept the potatoes and pay therefor, upon their delivery to them, at the town of Summitville. That on or about the 8th day of October, 1906, appellees received said car of potatoes, consisting of 565 bushels, and relying upon said warranty, accepted and paid for the same; that said potatoes were not of good quality, were not good keepers, and did not keep in appellees' cellar and storerooms, but were immature and green potatoes; that appellees relied upon said warranty, and, believing the potatoes to be of the kind and quality sold to them as aforesaid, placed them in their cellar, and within four weeks thereafter the same decayed and became absolutely worthless, and appellees were compelled to remove the same from their cellar. That the 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 the defects aforesaid they were of no value whatever, and said warranty was thereby broken, and the plaintiffs 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 by the purchaser and a breach of the warranty resulting in damages. These averments, we think are clearly sufficient to state a cause of action. Lincoln v. Ragsdale, 7 Ind. App. 354, 31 N. E. 581;Shirk et al. v. Mitchell et al., 137 Ind. 185-189, 36 N. E. 850;Aultman, Miller & Co. v. Seichting, 126 Ind. 137, 25 N. E. 894;Jones v. Quick, 28 Ind. 125;Smith et al. v. Borden, 160 Ind. 223-228, 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. Our statutes (section 7469, Burns' Ann. St. 1908) provide 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 all of the property purchased. The statute of frauds, therefore, has no application to the case made by the complaint before us. Fletcher et al. v. Southern, 41 Ind. App. 550, 84 N. E. 526;Barkalow v. Pfeiffer, 38 Ind. 214. This disposes of all the errors assigned, except the ruling upon the motion for a new trial.

Specifications 1 to 4, 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 had been made by the appellees and the agent of appellants that said agent prepared a memorandum and left a copy thereof at appellees' store, which was as follows: “Sold 10/2 Warner & Sons. 600 Bu. Potatoes, fifty C. Per. Bu. F. O. B. Summitville, Geo. Hitz & Co. Per Pringle.” It is contended by appellants that this memorandum is a contract, and that all the negotiations preceding it were merged therein, and that parol testimony on the subject of the sale of the potatoes was therefore inadmissible, and the decision of the court based upon the parol testimony erroneous. If this memorandum can be held to be a contract, and was entered into by the parties with the intention that it should evidence their agreement, then the contention of appellants must be sustained, otherwise a different conclusion must follow. Does this memorandum contain the essential elements of a contract? It is only signed by one of the parties, says nothing about the quality of the potatoes, the time of delivery or payment. Thus far there can be no dispute, but appellees also assert that the warranty was not only a part of the contract, but was the inducement to the purchase.

In speaking of a memorandum sufficient to take a case out of the statute of frauds, in Ridgway v. Ingram, 50 Ind., our Supreme Court, by Worden, J., on page 146 (19 Am. Rep. 706) said: “A memorandum, in order to be sufficient within the statute, must state the contract with such reasonable certainty that its terms may be understood from the writing itself, without recourse to parol proof.” This was said with reference to the memoranda of a sheriff indorsed on an order of sale, and the court held that they were not warranted in inferring that the sheriff meant the land described in the order, there being no reference in the memoranda itself to the order of sale or the real estate therein described. In Sprankle v. Trulove, 22 Ind. App. 577, 54 N. E. 461, this court said: “Parol evidence cannot be resorted to for the purpose of supplying anything which it lacks to make it a written agreement containing the essential terms of a sale.” In the case of Norris v. Blair, 39 Ind. 90, 10 Am. Rep. 135, the question was determined that the memorandum kept by the clerk at a public sale was not sufficient to evidence a contract. See, also, Lee et al. v. Hills et al., 66 Ind. 474;McMillen v. Terrell, 23 Ind. 163;Telluride, etc., Co. v. Crane Co., 208 Ill. 218, 70 N. E. 322. Furthermore, the evidence is by no means conclusive that the appellees had any knowledge of this...