Poland v. Miller

• Decision Date: 10 May 1884
• Docket Number: 11,030
• Citation: 95 Ind. 387
• Parties: Poland v. Miller et al
• Court: Indiana Supreme Court

95 Ind. 387

Poland v. Miller et al

No. 11,030

Supreme Court of Indiana

May 10, 1884

From the Shelby Circuit Court.

J. B McFadden and B. F. Love, for appellant.

T. B Adams and L. T. Michener, for appellees.

OPINION

Best C.

The appellees brought this action to recover such damages as they had sustained by reason of an alleged breach of warranty in the sale of a number of barrels manufactured and sold by the appellant to them for the purpose of holding and storing whiskey.

The complaint consisted of two paragraphs. The first averred, in substance, that the appellant was engaged in manufacturing tight barrels, suitable for holding and storing whiskey, and for such purpose sold the appellees, who were engaged in its manufacture, a large number; that among these, twenty-five were defective, unsound and so unskilfully made as to be unfit for such use; that the appellees, without knowledge of their defective condition and in the belief that they were sound and suitable, filled all of them with whiskey and stored them away; that immediately thereafter they paid the government a revenue tax of ninety cents upon each gallon placed in them, and that afterwards, without their fault, three hundred and ten gallons of said whiskey, of the value of $ 1.90 per gallon, leaked from said barrels and was lost, to their damages, etc.

The second paragraph avers the same facts as the first, except it is alleged that the appellant expressly warranted said barrels to be suitable for the purpose for which they were made and sold.

A demurrer to each paragraph of the complaint was overruled; an answer in denial and a set-off were filed. A reply completed the issues, which were tried by a jury and a verdict for $ 200 less $ 48 was returned for the appellees, upon which, over a motion for a new trial, judgment was rendered. The rulings assigned as error are that the court erred in overruling the demurrer to the complaint, and in overruling the motion for a new trial.

The only objection urged to the second paragraph of the complaint is that it is not averred that the defects were not open and notorious. This was unnecessary, as such warranty does not embrace such defects. This would seem to be matter of defence. The approved forms do not contain such averment, and we think the law does not require it. 1 Estee Pl., p. 550; Iglehart P. &. P., p. 543; Page v. Ford, 12 Ind. 46.

The second paragraph being sufficient, the assignment that the court erred in overruling the demurrer to the complaint can not be sustained, however faulty the first may be, and, therefore, as an examination of the various objections made to the first is useless, we pass them, though we think none of them are well taken.

The motion for a new trial embraces several questions which will be considered in the order of their discussion.

It is first insisted that the evidence was not sufficient to sustain the verdict. This conclusion is thus reached: The price paid for the defective barrels exceeded their value, but the difference did not equal the damages assessed and the excess must rest upon the quantity of whiskey lost and revenue paid. If not entitled to recover for the loss of the whiskey the amount of the recovery was too large, and hence the appellant insists that the evidence is not sufficient to support the verdict.

The evidence tended to show that the appellees knew when they put the whiskey into the barrels that some of them were unfit for use, and the appellant insists that the appellees were therefore guilty of culpable negligence in using the barrels and hence they must sustain such loss as their use occasioned. The loss, if any, sustained by the use of barrels which the appellees knew were unfit, must be borne by them, but the mere fact that they knew that some of them were unfit did not necessarily render them negligent in using the remainder. Whether or not their use, under the circumstances, was negligence, was a question of fact. The evidence shows that three or four of the barrels, when the whiskey was put into them, leaked so badly as to be unfit for use, and from these the whiskey was emptied and the barrels...