J.I. Case Threshing Mach. Co. v. Badger

• Decision Date: 03 June 1914
• Docket Number: No. 8207.,8207.
• Citation: 56 Ind.App. 399,105 N.E. 576
• Parties: J. I. CASE THRESHING MACH. CO. v. BADGER et al.
• Court: Indiana Appellate Court

56 Ind.App. 399

105 N.E. 576

J. I. CASE THRESHING MACH. CO.

v.BADGER et al.

No. 8207.

Appellate Court of Indiana, Division No. 2.

June 3, 1914.

Appeal from Circuit Court, Perry County; William Ridley, Judge.

Action by William C. Badger and others against the J. I. Case Threshing Machine Company, to recover damages for breach of warranty in the sale of certain threshing machinery. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

Wm. M. Waldschmidt, of Cannelton, and Norman E. Patrick, of Indianapolis, for appellant. Ewing, Roose & Paris, of New Albany, and Dennis F. Seacat, of Evansville, for appellees.

LAIRY, J.

The record in this case discloses that in June, 1906, appellant sold and delivered to appellees a threshing machine outfit, taking in settlement certain promissory notes secured by chattel mortgage on the property sold. The machinery was sold under the following written warranty:

“Said machinery is purchased upon and is subject to the following mutual and independent conditions and none other, namely: It is warranted to be made of good material, and durable with good care, to do as good work under same conditions as any made in the United States of equal size and rated capacity, if properly operated by competent persons with sufficient steam or horse power, and the printed rules and directions of the manufacturers intelligently followed. If by so doing, after trial of ten days by the purchasers, said machinery shall fail to fulfill the warranty, written notice thereof shall be given to J. I. Case Threshing Machine Company, at Racine, Wisconsin, and also to the agent through whom received, stating in what parts and wherein it fails to fulfill the warranty, and reasonable time shall be given to said company to send a competent person to remedy the difficulty, the purchaser rendering necessary and friendly assistance, said company reserving the right to replace any defective part or parts and if then the machinery cannot be made to fill the warranty, the part that fails is to be returned by the purchaser, free of charge to the place where received, and the company notified thereof and at the company's option another substituted therefor that shall fill the warranty, or the notes and money for such part immediately returned and the contract rescinded to that extent, and no further claim made on the company. Failure so to make such trial or to give such notices in any respect, shall be conclusive evidence of the due fulfillment of warranty on the part of said company and that the machinery is satisfactory to the purchasers, and the company shall be released from all liability under the warranty. Any assistance rendered by the company, its agents, or servants in operating said machinery or in remedying any actual or alleged defects, either before or after the ten days' trial, shall in no case be deemed any waiver of, or excuse for, any failure of the purchaser to fully keep and perform the conditions of this warranty. *** If any part of the machinery (except belting which is not warranted) fails, from defect of material while this warranty is in force, the company has the option to repair or replace the same, on presentation of the defective part or parts, but deficiency or defect in any piece shall not condemn other parts, and the purchaser expressly waives all claims for damages on account of the nonfulfillment of said warranty by any of the above-described machinery. Each machine and attachment is ordered at a separate fixed price, which price, unless otherwise specifically agreed, bears the same ratio to the aggregate price above specified at the company's 1907 list price of each said machine and attachment bears to the aggregate list price of all said machines and attachments. This order is divisible as to each machine and attachment ordered, and the failure of any separate machine or attachment to fill the warranty shall not affect the liability of the purchaser for any other machine or attachment hereby ordered. Should any machine or attachment be subject to return under this order, it shall be returned at the separate fixed price at which it was sold as above provided, and secondhand machinery or other property taken in trade shall not be taken into account. *** In no event shall the company be liable otherwise than for the return of cash and notes actually received by it.”

Appellees brought this action October 25, 1909, to recover damages for a breach of the warranty heretofore set out, and appellant filed several paragraphs of answer, among which are certain paragraphs of counterclaim by which appellant seeks to recover a balance due on the purchase price of the machinery and to foreclose two chattel mortgages, one of which was executed by all of appellees to secure the original purchase price and the other of which was executed by all of the appellees except Harper on September 24, 1908, and which was given as additional security and to obtain an extension of time. The latter mortgage covered a sawmill and some horses owned by the mortgagors, and not covered by the original mortgage. Other pleadings were filed, but as the questions presented depend upon the issues tendered by the complaint and the counterclaim, we will not extend this opinion by a further reference to the pleadings. The issues formed upon the complaint were submitted to a jury for trial, and the court determined the issues presented by the counterclaim. The court found in favor of appellant on the counterclaim that there was due it on the notes sued on the sum of $1,601.10, and the jury returned a verdict in favor of appellees on the complaint, and assessed their damages for the breach of the warranty at...