Nave v. Powell

• Decision Date: 15 November 1911
• Docket Number: No. 7,175.,7,175.
• Citation: 96 N.E. 395,52 Ind.App. 496
• Parties: NAVE v. POWELL.
• Court: Indiana Appellate Court

52 Ind.App. 496

96 N.E. 395

NAVE

v.POWELL.

No. 7,175.¹

Appellate Court of Indiana, Division No. 1.

Nov. 15, 1911.

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Action by Alton P. Nave against Oliver M. Powell. Judgment for defendant, and plaintiff appeals. Reversed, with directions.C. R. Milford, for appellant. Cox & Andrews, for appellee.

HOTTEL, J.

Action upon two promissory notes for $500 each, given by appellee to appellant in payment for a stallion. Numerous pleadings by way of special answers and special replies thereto and cross-complaints and special answers thereto were filed in the case, the sufficiency of each of which was tested by demurrer by each party respectively, and exception to each ruling properly saved. The cause was tried by a jury and resulted in a verdict for appellee in the sum of $98. A motion for a new trial was filed by appellant and overruled by the court with exception to appellant. From a judgment on the verdict this appeal is prosecuted.

The rulings on the pleadings adverse to appellant and the ruling of the court on the motion for new trial are assigned as errors. These rulings on the pleadings are numerous; but, inasmuch as it is conceded by appellant that each ruling presents practically the same question, viz., the effect to be given to a written warranty given to appellee at the time of said sale of said horse and for the further reason hereinafter indicated, we deem it unnecessary to set out each particular pleading and ruling on the demurrer thereto.

Appellant in his original brief concedes that there are but two questions presented by this appeal: “(1) The question as to whether or not the expense put on the horse for his care, etc., is a legitimate item of damage. (2) The construction to be put on said written warranty of the stallion.”

[1] Appellee, however, insists that appellant, on account of failure to comply with the rules of this court in the preparation of his brief, is not entitled to have either of said questions considered.

Appellant in his reply brief in effect concedes that he has not in his original brief incorporated therein the motion for new trial, or any of its grounds, and that he has by such omission deprived himself of the consideration of any of the questions presented by such motion, but, on the other hand, earnestly insists that as to the question presented by the pleading he has not only made a good-faith effort to, but has, in fact, set out enough of the substance of each respective pleading to present the real question involved in the ruling of the court on the demurrer thereto, and has thereby fully brought himself within the spirit of the rules of the court as interpreted by its decisions, that this is especially true with respect to the first paragraph of his reply to appellee's first paragraph of answer and also with respect to the sixth paragraph of appellee's answer, and the third paragraph of his cross-complaint; the last two being practically the same.

The appellant sets out in his original brief a copy of the written warranty and a copy of a contract of insurance contained in each of said pleadings, and, while the said respective pleadings are not set out in detail, yet there is such a good-faith effort upon the part of the appellant to set out the substance of each, with a reference to the page and line of the record where the entire pleading will be found, that we think to deprive him of a consideration of the question of the construction to be placed upon such warranty and insurance contract, in so far as said pleadings are controlled by the same, would be to require a strictness of compliance with said rules never contemplated or intended by their makers, and wholly unwarranted by the previous decisions of this court.

We think it clear that each member of this court can know by a reference to appellant's brief alone, and without reference to the record, the real question therein attempted to be raised as to the sufficiency of said respective pleadings, in so far as they are affected by said written instruments, which, we think, under the holdings, is sufficient to require a consideration of said question. Houpt v. Dutton, 170 Ind. 69-71, 83 N. E. 634;Hay v. Bash, 37 Ind. App. 167-169, 76 N. E. 644;Roberts v. Ft. Wayne Gas. Co., 40 Ind. App. 528-532, 82 N. E. 558.

A summary of the material allegations of the first paragraph of appellee's answer to which the appellant's said special reply is addressed is as follows: That appellant had been and was on the 21st day of April, 1904, engaged in breeding, importing, and selling horses for breeding purposes, and through appellant's agent made application to buy such stallion of appellant, and that appellant through his agent sold to appellee the horse Major McKinley; that appellant was informed and knew the said purpose for which said stallion was wanted by appellee, and so knowing sold said stallion for breeding purposes, and said horse so sold constituted the only consideration given for each of said notes; “that plaintiff thereby impliedly warranted said horse to be fit and suitable for breeding purposes and a reasonably sure foal-getter.” Said paragraph then alleges: That the appellee “stood said horse for the breeding season of 1904,” advertised him by posting and newspaper notices; that the horse was well patronized by the public; that 60 fruitful mares were bred to him during said breeding season, none of which were gotten in foal; “that said horse was utterly barren and unprolific *** and *** incapable of getting any mares with foal” at the time of said sale or thereafter; “that relying upon said statements, representations, and warranty so made by appellant, and believing the same to be true,” appellee “purchased said horse for breeding purposes”; that the fact that said horse was “barren and unprolific” could not be detected by a “person of ordinary prudence and skill exercising ordinary care,” and was for this reason unknown to appellee, but such facts were well known to appellant when he sold appellee the horse; that said horse was wholly worthless; and that therefore the consideration for said horse had wholly failed.

The theory of this paragraph of answer is an implied warranty of the breeding qualities of said stallion by appellant at the time of the sale and a breach thereof.

By way of avoidance of the matters alleged in said answer, said first paragraph of reply avers the sale of said stallion for $1,000, for which the notes in suit are alleged to have been given, and avers further the execution and delivery to appellee as part of said contract of sale of said stallion “a certain writing” which is set out in said reply and is as follows: “Walnut Grove Stock Farm, A. P. Nave, Proprietor, Breeder of High Class Percheron Horses. Attica, Indiana, April 21, 1904. Know all men by these presents, that I, A. P. Nave, of Attica, Fountain county, Indiana, have this day sold to O. M. Powell of Wagoner of - county, state of Indiana the Percheron stallion Major McKinley No. 19858. For extended pedigree see certificate of registry. For the consideration of one thousand dollars ($1,000.00) the receipt whereof is hereby acknowledged. In the event that the above-named stallion, in perfect health, with proper usage, and the mares to him regularly returned and tried or bred on one full service season's trial does not get with foal 50 per cent. of the producing mares regularly tried and bred to him, then on return of the said stallion to me at Attica, Fountain county, Indiana, during the first week in the month of April next following the full service season first concluded after the date thereof, in good health and condition, I agree to furnish the above-named purchaser without further charge, another imported or pure bred stallion of equal quality in exchange; but it is expressly provided as a condition of this warranty, that the tally sheet accompanying and delivered with this bill of sale shall be accurately filled out, with date of each service and trial to enable identification of all mares bred, and after being so filled out shall be returned to me at Attica, Fountain county, Indiana, by registered letter, not later than July 15, 1905. It is hereby stipulated that a stallion's full service season shall be considered as the period commencing the first day of May and ending the first day of July. In the event the conditions of the above agreement are not faithfully performed, or should the above-named stallion hereafter become injured or disabled through accident or disease, or should any change or alteration be made of this bill of sale, not shown by the press copy of same preserved by me, this warranty shall be null and void and of no effect and all obligations incurred by me herein shall be considered fulfilled and ended. This bill of sale contains all the agreements of warranty or guaranty made by me in the sale of the above-mentioned stallion, and it is expressly provided that I shall not be liable for any claim that may hereafter be made alleging any verbal agreement of myself or agent in the sale of said horse. In witness whereof I have hereto set my hand and seal this the twenty-first day of April in the year of our Lord nineteen hundred four. A. P. Nave. [Seal.]”

The reply then alleges that as a part of the same transaction “the plaintiff executed and delivered to defendant a certain written instrument in the following words”: “Walnut Grove Stock Farm, A. P. Nave, Proprietor, Breeder and Importer of Percheron Horses of high class and purest lineage. Attica, Indiana, April 21, 1904. This indenture witnesseth: That whereas O. M. Powell has purchased of the undersigned Alton P. Nave, of Attica, Indiana, the Percheron stallion, named Major McKinley, numbered 19858, the said Nave hereby agrees with said Powell that if the stallion should die on or before April 21, 1905, from natural causes, said death not to be due from lack of proper...