Schaefer v. Fiedler
| Decision Date | 05 November 1945 |
| Docket Number | 17334. |
| Citation | 63 N.E.2d 310,116 Ind.App. 226 |
| Parties | SCHAEFER v. FIEDLER. |
| Court | Indiana Appellate Court |
Appeal from Whitley Circuit Court; Robert R. McNagny, Judge.
S. K. Frankenstein, of Ft. Wayne, for appellant.
Bloom & Bloom, of Columbia City, for appellee.
This action was brought by appellant against appellee by a complaint in two paragraphs, the first upon open account and the second for money had and received. To this complaint appellee filed a general answer of admittance and denial and a set-off in two paragraphs alleging breach of contract. The trial was to the court which found generally for the appellant on his first paragraph of complaint in the sum of $239.50 and for the appellee on his first paragraph of set-off in the sum of $846.50. Appellant's motion for a new trial was overruled and judgment rendered for appellee in the sum of $607, the difference between the two findings.
The sole error assigned upon appeal is the overruling of appellant's motion for a new trial which challenges the sufficiency of the evidence to support the finding on the set-off and the amount thereof.
The paragraph of set-off here involved charges that on July 1 1937, by written contract and for the sum of $800 then paid appellee purchased from the appellant a farm combine which was delivered during the 1st week in July; that appellant breached its contract in four particulars: (1) by delay in delivery; (2) by failure to deliver at the place named in the contract; (3) by failure to assemble the machine; and (4) by breach of the warranty of fitness for the purpose purchased.
Appellant presents eight contentions: (1), (2), and (3) that the evidence fails to show breach of the contract in any of the first three particulars charged by appellee; (4) that appellee waived his rights as to breach of warranty by failing to give the notice thereof required by the contract; (5) that appellee cannot recover for breach of warranty because the contract confines him to the remedy of rescission; (6) that the court in assessing the damages allowed for the difference between the actual value of the combine as delivered and as warranted plus consequential damages, whereas the amount of recovery should have been confined to the first element; (7) that there is no evidence as to the value of the combine as delivered; and (8) that the items allowed as consequential damages do not qualify as such.
On the question of lateness of delivery the evidence shows that the date for delivery was left blank but that appellant verbally agreed to deliver in time for combining appellee's wheat crop; that this crop was ready for combining when the contract was signed; that the machine was bought f.o.b. the factory and was delivered during the first week in July. The exact date is not shown. We agree with appellant that this evidence not only fails to show breach of the contract for delay in delivery but in fact shows prompt delivery.
On the question of failure to deliver at the place called for in the contract the evidence shows that the combine was to be delivered at appellee's farm; that appellant advised appellee that it had arrived at Bremen, Ind., and offered to make the delivery to the farm but that appellee, needing the implement and being in a hurry to obtain it, volunteered to go to Bremen after it; that appellant and appellee went together to Bremen the next day each driving his own truck; that appellee brought back his combine and appellant got one for another customer. This voluntary action on the part of appellee in the face of appellant's offer to deliver clearly does not constitute a breach of contract to deliver at the farm on the part of appellant.
On the question of failure to assemble, the evidence shows that when appellee arrived at his farm with his combine he immediately proceeded to assemble it and when appellant came there two days later the job was practically done. Here again there is no showing of unreasonable delay in the assembling by appellant and the voluntary action of appellee cannot constitute a breach of the agreement to assemble the machine on appellant's part.
We proceed to examine the contentions concerning breach of warranty.
Appellant says the notice required by the contract was not given (1) because the contract requires a notice by registered mail which was not given, and (2) because the contract requires notice of any breach of warranty within three days after the first use of the combine and notice was not given until several months after its first use.
As to the first of these contentions the evidence shows that appellee notified the appellant by telephone and that appellant immediately went to the farm where appellee had the machine and attempted to put it in satisfactory working order. By accepting the notice which he did receive and acting upon it appellant waived his right to notice in the exact manner required by the contract. McCormick Harvesting Machine Company v. Gray, 1885, 100 Ind. 285; Springfield Engine & Thresher Co. v. Kennedy, 1893, 7 Ind.App. 502, 34 N.E. 856; Port Huron, etc., Co. v. Smith, 1898, 21 Ind.App. 233, 52 N.E. 106.
As to the notice being timely the evidence shows that the contract does call for notice of any breach of warranty within three days from the first use of the machine; that it was used during the summer of 1937 by appellee to combine his wheat and oats crop; and that no notice of any kind was given until fall when appellee first attempted to use the implement for combining a crop of soybeans. But the evidence also shows that one of the principal purposes for which the machine was sold was for the combining of soybeans; that a special attachment for combining soybeans was included in the sale; and that no opportunity existed for trying the combine with the attachment on soybeans until the crop ripened in the fall. The provision for three days' notice must be construed to mean after its first use for each of the principal purposes for which it was bought. The notice was timely.
Appellant's next contention is that in any event appellee was not entitled to recover damages for breach of warranty because the contract expressly limits his remedy to rescission. The contract does provide that if the combine cannot be made to fulfill the...
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