Maxwell Implement Co. v. Fitzgerald
| Decision Date | 18 January 1924 |
| Docket Number | No. 11650.,11650. |
| Citation | 142 N.E. 392 |
| Parties | MAXWELL IMPLEMENT CO. v. FITZGERALD. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lake County; E. Miles Norton, Judge.
Action by the Maxwell Implement Company against John Fitzgerald, in which the defendant interposed a counterclaim. Judgment for defendant on his counterclaim, and plaintiff appeals. Affirmed.
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 differences 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.
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. 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, P. J. (after stating the facts as above).
This appeal has been taken pursuant to the general provisions of the Civil Code. By that statement we mean that the appeal has not been taken pursuant to either of the special provisions of the Code. It has not been taken for the purpose of presenting “a reserved question of law” pursuant to section 669. Nor has it been taken solely for the purpose of presenting alleged error in giving or refusing to give instructions, pursuant to the proviso in section 691. (All sections cited in this opinion refer to Burns' Ann. St. 1914.)
The briefs and the argument (printed and oral) disclose that counsel for the appellant and also counsel for the appellee have been quite unmindful of the provisions of the Code. We must not forget that there is such a thing as the Civil Code. The various questions presented in this appeal involve a consideration of certain provisions of the Code, and to the Code we must look for a solution of each question.
[1][2][3] It is urged with much earnestness that the court erred in overruling the demurrer to each paragraph of the answer. Section 350 provides that-
“No objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment, if it appear from the whole record...
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Maxwell Implement Co. v. Fitzgerald
...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 ......
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