McCormick Harvesting-Mach. Co. v. Gray

• Citation: 16 N.E. 787,114 Ind. 340
• Parties: McCormick Harvesting-Machine Co. v. Gray.
• Decision Date: 17 April 1888
• Court: Supreme Court of Indiana

114 Ind. 340

16 N.E. 787

McCormick Harvesting-Machine Co.

v.Gray.

Supreme Court of Indiana.

April 17, 1888.

Appeal from circuit court, Pulaski county; J. C. Nye, Judge.

N. L. Agnew and B. Borders, for appellant. McConnell & McConnell, for appellee.

Howk, J.

This cause is now before this court for the second time. On the former appeal herein, the opinion and judgment of this court are reported under the title of McCormick Harvesting-Machine Co. v. Gray, 100 Ind. 285. Appellant is the plaintiff, and sued appellee, Gray, as defendant, upon two promissory notes executed by him to plaintiff on June 30, 1881. Defendant answered solely by counter-claim in two paragraphs, wherein, admitting the execution of the notes in suit, and that they were past due and unpaid, he averred that they and another note of like tenor and effect were given in payment for a McCormick harvester and twine-binder purchased by him of plaintiff; that at the time of such purchase and of the execution of said notes plaintiff executed to defendant a warranty, partly printed and partly written, which was set out, whereby such machine was “warranted to be well made, of good material, and durable, with care,” and it was agreed that “if, upon one day's trial, the machine should not work well, the purchaser shall give immediate notice to said McCormick Harvesting-Machine Company, or their agent, and allow time to send a person to put it in order. If it cannot then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and all notes and cash received in settlement will be refunded.” Defendant then alleged at great length, and with much particularity and detail, the facts which showed, as he claimed, a complete and absolute breach on the part of plaintiff of the foregoing warranty and agreement, and demanded damages on account thereof in his counter-claim. Plaintiff's demurrers to defendant's counter-claim were overruled by the court below, and these rulings were assigned here as errors on the former appeal herein; and it was then held, upon full consideration, that the counter-claim was sufficient to withstand the demurrers thereto. On that appeal the judgment below in defendant's favor was reversed for an error of law occurring at the trial, and the cause was remanded for a new trial. After the cause was returned to the court below, it is shown by the record now before us that the pleadings in the case, prior to the former appeal, were not amended by either party, and of course no change was made in the issues for trial. The cause was then tried by a jury, who returned into court their verdict, signed by their foreman, as follows: “We, the jury, find for the defendant, Thomas Gray, and assess his damages upon his counter-claim at one-hundred and twenty-seven dollars.” Over plaintiff's motion for a venire de novo, for a new trial, and in arrest, the court rendered judgment in defendant's favor for the damages assessed by the jury, and his costs herein expended. On this appeal plaintiff has assigned the following errors: “(1) The first and second paragraphs of defendant's counter-claim are neither of them sufficient to constitute a cause of action. (2) The court below erred in overruling plaintiff's motion for a venire de novo. (3) The court erred in overruling his motion for a new trial. (4) The court erred in overruling his motion in arrest of judgment.”

The first and fourth of these alleged errors may be properly considered together, as they were alike intended to call in question the sufficiency of defendant's counter-claim, after trial and verdict thereon. Each of these errors assails the counter-claim as an entirety, and not the several paragraphs thereof, and if either one of the two paragraphs states facts sufficient to constitute a cause of action it will repel the errors assigned and render them unavailing, however bad the other paragraphs might seem to be. On the former appeal herein we held that the first paragraph of defendant's counter-claim stated facts sufficient to constitute a cause of action, and that decision, if it were even erroneous,-and it was not,-we think is the law of this case. When the supreme court decides a case, the questions decided are irreversibly settled between the parties in all subsequent stages of the action. Hawley v. Smith, 45 Ind. 183;Board, etc., v. Railway Co., 89 Ind. 101;Davis v. Krug, 95 Ind. 1;Forgerson v. Smith, 104 Ind. 246, 3 N. E. Rep. 866; Railway Co. v. Hixon, 110 Ind. 225, 11 N. E. Rep. 285. We must hold, therefore, under the law as we have stated it, that the first and fourth errors assigned by plaintiff, in the case under consideration, are not available for the reversal of the judgment below. It is claimed on behalf of plaintiff that the court below erred in overruling its motion for a venire de novo. “A venire de novo is granted when the verdict, whether general or special, is imperfect by reason of some uncertainty or ambiguity, or by finding less than the whole matter put in issue, or by not assessing damages.” 2 Tidd, Pr. 922; Ridenour v. Miller, 83 Ind. 208;Bunnell v. Bunnell, 93 Ind. 595;Railway Co. v. Hixon, supra. We fail to see, however, and plaintiff's counsel have failed to show us, that the general verdict of the jury for the defendant in the case at bar is defective or imperfect in any particular, or that there is any uncertainty or ambiguity therein, or that it finds less than the whole matter put in issue, or does not assess damages. The court did not err, we think, in overruling plaintiff's motion for a venire de novo. Finally, it is insisted on behalf of the plaintiff that the court below clearly erred in overruling its motion for a new trial herein. In a supplemental brief recently filed by defendant's learned counsel the point is made and pressed with much earnestness that the questions arising under the alleged error of the court, in overruling the motion for a new trial, cannot be considered here, because, they say, the bill of exceptions appearing in the record fails to show that it contains all the evidence given in the cause. The original long-hand manuscript of the evidence, made by the official reporter of the court from his short-hand notes of the testimony taken at the trial, was duly incorporated in a proper bill of exceptions, and, as so incorporated, at plaintiff's request was certified by the clerk below to this court as a part of the record on this appeal. At the close of the original long-hand manuscript of the evidence is the phrase. “This was all the evidence given in the cause.” This is followed immediately by the certificate of the official stenographer, and immediately following this certificate is this statement, evidently prepared...