Perkins Windmill & Ax Co. v. Yeoman
| Decision Date | 12 December 1899 |
| Docket Number | 2,934 |
| Citation | 55 N.E. 782,23 Ind.App. 483 |
| Parties | PERKINS WINDMILL AND AX CO. v. YEOMAN |
| Court | Indiana Appellate Court |
From the Knox Circuit Court.
Reversed.
W. H DeWolf, for appellant.
O. H Cobb, for appellee.
This was an action upon a promissory note brought by the appellant, the payee, against the appellee, the maker. There was an answer in three paragraphs, the first being a general denial, and a reply in general denial was addressed to the second and third paragraphs. No question was made as to the sufficiency of any of the pleadings. The trial resulted in a finding for the appellee. The appellant's motion for a new trial was overruled. The evidence was not sufficient, unless it can be said that it sustained the third paragraph of answer. That paragraph alleged that the appellant agreed with the appellee to sell to the latter a certain windmill and properly to erect it upon the appellee's premises, for a certain sum, being the sum specified as principal in the note, and that the note was given therefor; that at the time of said agreement the appellant agreed with and guaranteed to the appellee that it would so construct and erect said windmill that it would run smoothly, and draw or pump water from the well at which it was to be erected to a height of at least four feet above the surface of the ground at that place, and that it would pump water to the quantity, on an average, of ten barrels per day. The erection of the windmill was alleged, and it was averred that it was so erected and constructed that it would not run smoothly and would not draw or elevate water to the height agreed upon, in the quantity agreed upon, and would not draw or elevate more than three or four gallons of water per day, upon an average. Notice to the appellant of such failures, and demand for the performance of the agreement, and failure of the appellant to cause the windmill to run smoothly, or to draw water as agreed upon, were formally alleged, and it was averred that the windmill was of no value to the appellee, and that he had held it since such notice, and still held it, subject to the order of the appellant.
The contract upon the breach of which the defense proceeded not being alleged to be in writing, the answer is to be treated as founded upon an oral contract. See Harrod v State, ex rel. (Ind. App.), 24 Ind.App. 159, 55 N.E. 242. On the trial, upon the examination of the...
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