Int'l Harvester Co. of America v. Haueisen
| Decision Date | 09 January 1918 |
| Docket Number | No. 9425.,9425. |
| Citation | 118 N.E. 320,66 Ind.App. 355 |
| Parties | INTERNATIONAL HARVESTER CO. OF AMERICA v. HAUEISEN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; W. W. Thornton, Judge.
Action by William C. Haueisen against the International Harvester Company of America. From a judgment for plaintiff, defendant appeals. Reversed, with instructions.
Bernard Korbly and Willard New, both of Indianapolis, for appellant. Whitcomb & Dowden, of Indianapolis, for appellee.
This is an appeal from a judgement in appellee's favor for $2,410.14 in an action brought by him against appellant to recover the purchase price of a tractor engine purchased by appellee from appellant for use on appellee's farm.
The only ruling of the trial court assigned as error and relied on for reversal is the overruling of the motion for a new trial. By this motion appellant challenged the action of the trial court in admitting certain evidence, and in giving and refusing certain instructions.
The complaint is very long, and while its sufficiency is not challenged, the parties in their respective briefs differ as to the theory upon which the case was tried below, and as this difference enters largely into their respective contentions affecting the said several rulings relied on by appellant for reversal, it will be necessary to indicate those averments of the complaint which are of influence in the determination of its theory and the correctness of said rulings with reference thereto. They are, in substance, as follows: On March 11, 1912, appellee owned a river bottom farm on White River, which was subject to overflow during periods of high water. The soil of said farm is of a sandy nature, made so by the sediment and deposits from the river. Appellant is a manufacturer of tractor engines operated by kerosene. These tractors were made to be sold to farmers to be used for drawing plows in breaking the soil and for drawing mowers and reapers, in cutting wheat and other grains, and for operating threshing machines in threshing wheat and other grains. At said time, as well as all other times involved herein, J. A. Everson was appellant's general agent, and W. F. Street was its sales agent at Indianapolis, and as such agents had full power to represent appellant in the sale of its said tractors and in all matters herein set out. Prior to said date appellant began negotiations with appellee to sell him a tractor to be used on said farm, for furnishing motive power for plowing the soil, for cutting wheat and other grain raised on said farm, and for operating a separator for threshing wheat and other grain raised thereon. Appellee then told appellant that said farm was a river bottom farm, and that he was in the market to buy a kerosene tractor engine for said purposes, provided it could and would pull a gang of plows with twelve bottoms or plows, so as to plow the soil on plaintiff's said farm to a depth of ten inches, and would draw mowers or reapers for cutting wheat and other grain raised on said farm, and would propel a separator for freshing wheat and other grain raised on said farm, and do good work in all of said services.
Appellant, and said Everson and Street, for and on its behalf, then represented to appellee that their 45 H. P. tractor kerosene engine would answer said purpose, and in all of said services would do good work, and that for said purpose said tractor had adequate power and was well and properly built, and was made of good material, and was strong and durable. Appellee had then never owned a tractor or engine used for said purposes, and was ignorant of the requirements of such an engine, and relied upon the representations so made by said Everson and Street, and so relying thereon was induced to sign and did sign an order to appellant for one of its said 45 H. P. “International Tractor Kerosene Engines,” for which he agreed to pay $2,400 to be evidenced by his note due January 1, 1913, with 12 per cent. discount if paid on or before December 1, 1912.
The warranty contained in such order is set out, and a copy of the order was made a part of the complaint by way of exhibit. It is then averred that pursuant to said order the tractor engine was delivered to appellee at his farm; that in conformity with arrangments before made, and before appellee had made any use of said tractor, said Everson, Street, and other agents and employés of said appellant were at appellee's farm, where said tractor was to be used, for the purpose of adjusting it and assisting appellee in starting and using it, and they then saw the soil and ground and farm on which said tractor was to be used, and were fully acquainted with their character, nature, and condition.
Averments follow showing a trial of said tractor in the presence of said appellant's said agents, Everson and Street, the particulars thereof, and the results, that it did not work well, that appellee told said agents that it did not do good work and was not satisfactory, that said agents protested that the soil was too wet, and stated that said tractor could and would do said work and plowing, and requested appellee to keep said tractor and use and test the same, and promised and agreed to assist appellee in making said tractor do said plowing in said soil, on said farm, all as before represented. The particulars of additional trials made at the request of appellant's said agents, with substantially the same result and failure in each instance, are set out in detail, together with the repeated efforts of appellant's said agents to adjust said tractor, and their continued assurances and representations to appellee that said tractor could and would do said plowing on said farm. It is also averred that when appellee executed the note provided for in his said order for said tractor, he told said Everson that said tractor was not satisfactory, and did not do good work, and objected to the giving of said note, whereupon said Everson, for the purpose of inducing appellee to give such note, stated to him that it was necessary in keeping their books in proper form, and represented that said tractor could and would do said work, and would plow said soil on appellee's farm; and then promised and agreed that appellant would take care of appellee and protect him from loss on account of said order and said tractor; that appellee relied on said promises, and relying thereon signed said note, not then knowing that said tractor was incapable of performing said services or of doing good work on account of its original construction, etc.; that on December 9, 1912, appellant called upon appellee to pay said note in order to get the advantage of 12 per cent. discount provided for, and appellee again notified appellant that the tractor was not satisfactory, that it did not fulfill the warranty, and refused to pay said note; that thereupon appellant, through said Everson, again repeated its representations and promises substantially as above set out and further promised that if appellee would forthwith pay said note, appellant would extend said warranty, and would see that said tractor would do said plowing, and would perform said services, and would do good work therein, and would stand behind appellee and protect him from any loss on account of said tractor or on account of said order; that relying on said representations, etc., and not knowing that said tractor was incapable of performing said services or doing good work because of its original construction, appellee on the 16th day of December, 1912, paid appellant $2,112, being the amount of said note less 12 per cent. discount, and thereafter the appellee received from appellant a letter which is set out, and, omitting the caption, etc., is as follows:
“Indianapolis, Ind., December 16, 1912.
Mr. William C. Haueisen, Indianapolis, Indiana-Dear Sir: In consideration of your making cash payment for 45 H. P. tractor, as per order of March 11, 1912, we hereby extend warranty therein until the spring of 1913.
Yours very truly,
International Harvester Company of America.
By J. A. Everson, General Agent.”
Averments then follow showing other trials and tests of said tractor in the spring of 1913, with results substantially the same as the previous trials; that appellant's agent Everson was notified that said tractor was not doing good work, and in response sent experts down to appellee's farm to adjust and try to make said tractor work; that appellant then insisted that the soil was too wet, and requested appellee to keep said tractor and try it in August for fall plowing, and continue his test of said tractor for the uses and purposes on his farm for which it was purchased; that upon such requests, accompanied by a further representation that appellant would take care of appellee and protect him from loss on account of said tractor, appellee kept it and tested it in cutting wheat on said farm and in running a separator to thresh the wheat raised on said farm, and again tested it for plowing in August, 1913; that in cutting wheat and in operating the separator it pulled too slowly to do good work, and in plowing it choked down and stalled with six plows running at a depth not exceeding six or seven inches; that Everson was again notified of said results, and that said tractor did not do good work and was not satisfactory, whereupon he, with representative of appellant from Chicago, represented to be an expert, visited appellee's farm, and in their presence another test of said tractor was made with a gang of plows with six bottoms set for plowing seven inches deep; that upon this test said tractor choked down and stalled, and would not pull said plows, and failed to do good work, whereupon said expert said to raise two of the plows out of the soil; that thereupon and when it became apparent to appellee that said tractor was defective in its construction, and incapable of performing good work in said...
To continue reading
Request your trial