Maxwell Implement Co. v. Fitzgerald
| Decision Date | 17 March 1925 |
| Docket Number | No. 11650.,11650. |
| Parties | MAXWELL IMPLEMENT CO. v. FITZGERALD. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeals from Circuit Court, Lake County; H. Bridwell and E. Mills Norton, Judges.
Action by the Maxwell Implement Company against John Fitzgerald, in which defendant filed a counterclaim. Judgment for defendant on his counterclaim, and plaintiff appeals. Affirmed.
Superseding former opinion in 142 N. E. 392.
This action was instituted by the Maxwell Implement Company against John Fitzgerald to recover on a promissory note, executed by the latter to the former, in the principal sum of $600, with interest from maturity and attorney's fees. The complaint is in the usual form and contains the averment that a reasonable fee for plaintiff's attorney is $250.
The defendant filed an answer in two paragraphs, and also filed a pleading denominated “cross-complaint,” but which in truth is a counterclaim.
By the first paragraph of answer the defendant admitted the execution of the note and then averred that at the time of the execution of the note he entered into a written agreement with the plaintiff whereby he purchased one Harry Farmer tractor and one three-bottom engine plow, at the price of $1,300; that he paid therefor $500 in cash and $200 in the form of a Liberty bond, and executed the note for the balance; and that the written agreement contains the following:
“The seller hereby warrants the machine herein ordered to be well made, of good material, durable with proper care, and when properly operated to perform successfully the work for which it is designed. If within one year from date of purchase, a part proves defective, the new part to replace defective one will be furnished at factory on receipt of part showing defect. ***
If, upon trial with proper care, the machine fails to work properly, the purchaser shall immediately give written notice to the seller stating wherein the machine failed, shall allow reasonable time for a competent man to be sent to put it in good order, and render necessary and friendly assistance to operate it. If the machine cannot be made to work well, the purchaser shall immediately return it to the seller and the price paid shall be refunded, which shall constitute a settlement in full of the transaction. It is expressly agreed that the title to the property herein ordered shall not pass to the purchaser until full payment therefor shall have been made, whether notes have been given for the purchase price thereof or not.”
Then follow averments showing in detail that there was a breach of the warranty; that notice thereof was given to the plaintiff; that thereupon the plaintiff, by one of its officers, endeavored to operate the tractor and to put it in condition to successfully perform the work for which it was designed, but in that effort wholly failed; that the machine was tendered back to the plaintiff; that the plaintiff refused to accept it; and that the plaintiff has failed to refund the purchase price.
The second paragraph of answer admits the execution of the note and contains the same averments with respect to the purchase of the machine, the consideration therefor, and the execution of the written agreement as those contained in the first; but it is distinguished from the first by the following averments:
“That difference arose between the parties after the delivery and attempt to operate the tractor as to whether it complied with the warranty; that thereupon the plaintiff and the defendant agreed to compromise and settle their differences, by the terms of which agreement and compromise the plaintiff agreed to take back the tractor and to furnish in its place and stead a farm tractor commonly known and designated as a Moline tractor; that the plaintiff, in consideration of the right to furnish the Moline tractor and to settle the differences between the parties, was to keep the cash, the Liberty bond, and the note; the defendant agreed to pay the note and also agreed to pay an additional sum of $200; that the plaintiff has failed and refused to comply with the terms of the agreement of settlement, and has failed to furnish a Moline tractor, although the defendant at all times has been and now is ready and willing to pay the additional sum of $200, and to pay the note on the furnishing of a Moline tractor.”
The counterclaim is substantially the same as the first paragraph of answer, with the additional averment that the defendant has been damaged in the sum of $1,000.
Demurrers, for want of facts, addressed respectively to each paragraph of answer, and to the counterclaim were overruled. In its memorandum accompanying the demurrer, the plaintiff specified fifteen reasons why the counterclaim is deficient. Briefly stated, those reasons rest on the alleged failure to show by proper averments the following elements:
“That the note was given in payment for the tractor; that a written notice was given of the failure of the tractor to work properly; that the tractor was returned; the kind of work for which the tractor was designed; that the tractor was designed to do plowing; that the tractor was properly operated; wherein the plaintiff failed to operate the tractor after notice; wherein the plaintiff failed to put the tractor in good order; that the defendant's ground was in suitable condition for plowing; that the tractor was designed to plow the kind of ground on which it was used; that the tractor was operated by the defendant; that it was designed to pull drags and harrows; that the plaintiff agreed to return the purchase price; that the defendant returned the tractor; or that the failure of the tractor properly to work was not due to the unskillful operations of it by the defendant.”
The defendant moved the court: “that he be given the opening and closing, and that he be permitted to assume the burden of proof herein.” The motion was sustained. Thereupon the plaintiff moved the court “that it be permitted to assume the burden of proof herein and to open and close the case.” This motion was overruled.
The jurors were peremptorily instructed to fix the amount of the attorney's fee at $250, if they found for the plaintiff.
The following verdict was returned:
“We, the jury, find for the defendant on the cross-complaint and assess his damages at $843.50, and that the plaintiff take nothing by its complaint herein. ***”
Judgment was rendered on the verdict, and the plaintiff's motion for a new trial was overruled.
The errors assigned challenge the ruling on each demurrer and on the motion for a new trial.
No attempt has been made to bring up the evidence or any part thereof.
Pattee & Johnson, of Crown Point, and Grant Crumpacker, of Valparaiso, for appellant.
Kelly & Galvin and Daly & Freund, all of Valparaiso, for appellee.
DAUSMAN, C. J. (after stating the facts as above).
[1] It is urged with much earnestness that the court erred in overruling the demurrer to each paragraph of the answer. However, it affirmatively appears from the record that the verdict rests entirely upon the counterclaim. Therefore the action of the court in overruling the demurrer to either paragraph of the answer would not constitute reversible error, even if erroneous, and we need not consider the sufficiency of either of those paragraphs.
[2][3][4] Counsel also contend that the court erred in overruling the demurrer to the counterclaim. The contract provides that, if “the machine fails to work properly, the purchaser shall immediately give written notice” thereof. The averment in the counterclaim is that the defendant “notified the plaintiff, and that thereupon one Leonard Maxwell, an officer of the company, responded within two days after the notice and endeavored to operate the tractor.” It clearly appears from the contract that the purpose of the notice to be given by the buyer to the seller was to give the seller an opportunity to send a competent man to put the tractor in good order. There can be no doubt that the seller could waive the requirement of the contract that the notice of the failure of the tractor to work properly should be given in writing, since that provision of the contract is for the benefit of the seller. On the averment of the counterclaim the presumption arises that the notice was oral. Now, if the counterclaim contained no other averment on this feature, we would have a different question. But that pleading contains the further averment that on receipt of the notice the seller promptly responded, and by one of its officers endeavored to operate the tractor and to put it in condition to successfully perform the work for which it was designed. The seller might have ignored the oral notice and stood upon the strict letter of the contract; but that it did not do. The courts generally recognize and enforce the rule that, where the buyer gives notice of defect in a machine purchased, which notice is not in accordance with the stipulation in the contract, and the seller promptly responds to the notice and attempts to remedy the defect, as required by his contract, he thereby waives the provision of the contract as to the time and manner in which the notice should be given. Campbell v. Wray, 5 Ind. App. 155, 31 N. E. 824;Springfield, etc., Co. v. Kennedy, 7 Ind. App. 502, 34 N. E. 856;Seiberling & Co. v. Newlon, 16 Ind. App. 374, 43 N. E. 151;Huber Manuf'g Co. v. Busey, 16 Ind. App. 410, 43 N. E. 967;Aultman & Co. v. Richardson, 21 Ind. App. 211, 52 N. E. 86;Siebe v. Heilman Mach. Works, 38 Ind. App. 37, 77 N. E. 300;Daugherty v. Advance-Rumley, etc., Co., 190 Iowa, 424, 180 N. W. 277;Emmerich v. Joliet, etc., Co., 206 Ill. App. 415;Ditto v. International, etc., Co., 105 Neb. 544, 181 N. W. 544;Palmer v. Reeves & Co., 139 Mo. App. 473, 122 S. W. 1119;Monroe v. Cownie, 133 Va. 181, 112 S. E. 848;Fairbanks, etc., Co. v. Nelson, 217 F. 218;133 C. C. A. 212. The counterclaim sufficiently avers a waiver of the stipulation in the contract with respect...
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