McCormick Harvesting Machine Co. v. Gray

• Decision Date: 12 February 1885
• Docket Number: 11,833
• Parties: The McCormick Harvesting Machine Company v. Gray
• Court: Indiana Supreme Court

100 Ind. 285

The McCormick Harvesting Machine Company v. Gray

No. 11,833

Supreme Court of Indiana

February 12, 1885

From the Pulaski Circuit Court.

N. L Agnew, for appellant.

G Burson and R. L. Mattingly, for appellee.

OPINION

Black C.

Action by the appellant against the appellee upon two promissory notes, executed June 30th, 1881, by the latter to the former. Answer in two paragraphs. The overruling of the plaintiff's motion to separate each of these paragraphs into two paragraphs is assigned as error; but the grounds of such a motion with an exception to the ruling thereon not being shown by bill of exceptions, this assignment will not be further noticed.

The plaintiff's demurrer to each paragraph of the answer, assigning want of sufficient facts, was overruled. The plaintiff replied by general denial. The cause was tried by jury, the verdict being in favor of the defendant, that he recover of the plaintiff $ 100, and that the notes sued on be surrendered up and cancelled.

With their verdict the jury returned answers to interrogatories. Upon the plaintiff's motion the court caused the jury to retire again, for the purpose of answering some of these interrogatories plainly, fully and responsively. After deliberating, the jury returned and informed the court that they could make no different answers. Thereupon the plaintiff moved that the jury be required to answer said interrogatories plainly, fully and responsively. The court overruled this motion, and, over the plaintiff's objection, discharged the jury without requiring further answer to said interrogatories.

The plaintiff moved unsuccessfully for judgment upon the answers of the jury to the interrogatories, notwithstanding the general verdict, and for judgment upon the pleadings, notwithstanding the verdict. The plaintiff also moved for a new trial, and, the defendant having entered a remittitur for the sum of $ 100, the court overruled the motion for a new trial, and then rendered judgment that the notes in suit be surrendered up and cancelled.

It is contended by each party that the verdict was based wholly upon the first paragraph of the answer, and the special findings of the jury seem to be capable of such a construction. We will, therefore, notice only the first paragraph.

In it the defendant admitted the execution of the notes, and alleged, in effect, that they and another note of like tenor and effect were given in payment for a McCormick harvester and twine binder; that at the time of the purchase of said machine and of the execution of said notes, the plaintiff's agent executed to the defendant a warranty, partly printed and partly written, which was set out, whereby the machine ordered by the defendant 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 can not then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and all cash and notes received in settlement will be refunded."

It was alleged that, relying on said warranty, the defendant ordered and bought said machine and executed said notes in suit and said other note; that after receiving said machine, in the harvest of 1881, he attempted to cut his wheat and test said machine; that after vain attempts to make said machine run and cut, at first with three and then with four horses, he was compelled by its failure to work well to abandon all effort to work with it; that it was defective in material and construction, and would not work at all; that he immediately gave notice to the plaintiff's agent, named, of the failure of the machine to perform or work as represented that said agent came and attempted to put the machine in order and to make it work, but, owing to some inherent defect in its material or construction, it would not work, and said agent was compelled to abandon all attempts to repair the machine or to put it in good working order; that four horses were insufficient to draw the machine and successfully do the work for which it was intended; that the defendant was forced to abandon all attempts to use said machine, after repeated attempts and trials made at the solicitation of the plaintiff's agent; that he could not use the machine for the reason that the weight upon the necks of the horses, when running, was so great that they were injured thereby, and that the draught of the machine was so great that four horses could not draw it without great and unusual fatigue and injury, and that to continue to use and work horses to it would have permanently injured his horses; that though three horses would be sufficient to draw and cut with ordinary harvesting machines with twine binders attached, said machine was so badly constructed that four horses could not successfully draw and cut with it; that it would not and could not be made to run and cut well; that it did not run as light as other machines made for a similar purpose, that could have been brought into the defendant's field; that it was not well made, but was unskilfully made and wholly unfit for the purpose for which the defendant purchased it, and was wholly unfit for a harvesting machine; that after said vain attempts of the plaintiff's agent to make it work as...