Shirk v. Mitchell

• Decision Date: 15 March 1894
• Docket Number: 16,644
• Citation: 36 N.E. 850,137 Ind. 185
• Parties: Shirk et al. v. Mitchell et al
• Court: Indiana Supreme Court

36 N.E. 850

137 Ind. 185

Shirk et al. v. Mitchell et al

No. 16,644

Supreme Court of Indiana

March 15, 1894

From the Clinton Circuit Court.

The judgment is reversed, at costs of appellees, with instructions to sustain the demurrers to the second paragraph of answer of John F. Mitchell and John F. Trott, and to the cross-complaint of said defendants, and for further proceedings not inconsistent with this opinion.

J. C Blacklidge, C. C. Shirley and B. C. Moon, for appellants.

J. G Adams and J. A. Swoveland, for appellees.

OPINION

Dailey, J.

The appellees, John F. Mitchell and John F. Trott, on November 27, 1886, purchased of appellant, James B. Michener, agent for the Springfield Engine and Thresher Company, a traction atlas second-hand engine on wheels, ten-horse power, under a written contract, and executed to him certain notes for part of the purchase-money, as follows: One note, for $ 225, dated November 27, 1886, due October 15, 1887; one note bearing the same date, due October 15, 1888, calling for $ 245.30, and one note, of like date, due October 15, 1889, for $ 232.05 all of which were secured by the appellees Davis and Davis and by a chattel mortgage on the property sold, as well as by mortgage upon certain real estate therein described.

These notes were indorsed by Michener to the appellant Milton Shirk, on January 10, 1887, and he brought this action, originally, upon the first note of the series, and, by a supplemental complaint, he afterwards sought to recover judgment upon the other notes, which matured after the beginning of the suit and before the trial.

In said proceeding, the plaintiff endeavored to reform a clerical error in the real estate mortgage, and to foreclose both of said mortgages.

The appellees Mitchell and Trott filed an answer in two paragraphs, the first of which was a general denial. The second paragraph of their answer pleads a breach of the written warranty contained in the contract of sale. The warranty is in these words: "The above machinery to be warranted, with proper usage and management, to do as good work as any of its size, made for the same purpose, and to be of good material, and durable with proper care."

The breach of the warranty alleged is as follows:

"That after the acceptance of said engine by these defendants from said James B. Michener, upon the conditions aforesaid, they thoroughly tried and tested said engine; that they procured the services of the best and most experienced engineers they could obtain, and found that said engine was deficient, in this, that it could not be made to furnish the power with which to draw the separator from one setting to another; that, in fact, it was deficient in every particular and phase of mechanism to the extent that these defendants could not use the same for threshing purposes, the purpose for which they purchased the same."

The plaintiff demurred to the second paragraph of the answer, for want of sufficient facts to constitute a defense to the plaintiff's cause of action.

The demurrer was submitted to the court and overruled, to which the plaintiff, at the time, excepted, and thereupon he filed his reply in general denial thereto.

Pending the action, the appellees Mitchell and Trott filed a cross-complaint, and had a summons issued thereon against the appellant Michener.

The cross-complaint, so far as it affects the plaintiff, is not materially different from the second paragraph of the answer, the same general facts being stated, except it charges that said Shirk colluded and conspired with said Michener to cheat and defraud the cross-complainants out of their legal rights by taking and accepting said notes and the assignments thereof, thereby hoping to place the same in the hands of an innocent holder and beyond the reach of these cross-complainants, as the statutes provide in the case of bank notes, well knowing, at the time he so accepted said notes and the assignments thereof, that the facts existed as therein alleged.

The plaintiff filed his motion and written reasons to strike out the cross-complaint. This motion was submitted to the court and overruled, to which the plaintiff, at the time, excepted. The ruling upon this motion was saved by a proper bill of exceptions. Thereupon the plaintiff filed his demurrer to the cross-complaint for want of sufficient facts to constitute a cause of action. The demurrer was submitted to the court, and overruled, and an exception taken. Answers in general denial completed the issues in the cause.

There was a trial by jury and a verdict for the defendants. The plaintiff filed his motion and written reasons for a new trial, which were overruled, and exceptions taken. Thereupon the court rendered judgment upon the verdict.

From the judgment so rendered, Milton Shirk and James B. Michener desiring to appeal this cause to this court upon questions of law only, and so notifying the court, it is certified by the court as required by the R. S. 1881, section 650, and rule 30 of the Supreme Court.

The sufficiency of the second paragraph of the separate answer of Mitchell and Trott, upon demurrer, is the first question for consideration.

It is a well settled principle that a breach of warranty pleaded as a cause of action or defense must, to be good upon demurrer, aver the character and extent of the warranty, and the nature and particulars of the breach. Booher v. Goldsborough, 44 Ind. 490; Robinson Machine Works v. Chandler, 56 Ind. 575; Johnston Harvester Co. v. Bartley, 81 Ind. 406; McClamrock v. Flint, 101 Ind. 278; Flint v. Cook, 102 Ind. 391, 1 N.E. 633; Conant v. National State Bank, etc., 121 Ind. 323, 22 N.E. 250; Aultman, Miller & Co. v. Seichting, 126 Ind. 137, 25 N.E. 894; Lincoln v. Ragsdale, 7 Ind.App. 354, 31 N.E. 581.

There may, sometimes, be an implied warranty that an article is fit for the purpose for which a purchaser buys it. Thus, it is said that if a manufacturer of an article sells it at a fair market price, knowing the purchaser desires to apply it to a particular purpose, he impliedly warrants it to be fit for that purpose. Brenton v. Davis, 8 Blackf. 317; Page v. Ford, 12 Ind. 46; Robinson Machine Works v. Chandler, supra; McClamrock v. Flint, supra; Conant v. Nat'l State Bank, etc., supra.

If this were an answer seeking to establish and enforce an implied warranty, the averments of the answer would be insufficient. There is no positive allegation in it that the engine was purchased for the purpose of threshing, or that the Springfield Engine and Thresher Company, or its agent, Michener, knew the purpose for which Mitchell and Trott were buying the engine.

The only reference, in the answer, as to the purpose of the purchase, is as follows: "That in fact it was deficient in every particular and phase of mechanism, to the extent that these defendants could not use the same for threshing purposes, the purpose for which they purchased the same."

In Jackson School Township v. Farlow, 75 Ind. 118 (122), it is said: "It was the rule at common law, and is the rule under the code, that matters can not be pleaded by way of recital. Facts must be positively alleged."

We think the purpose for which the engine was bought should be positively averred in the answer, and not left to mere recital or inference, and in this respect the answer should be made more specific. But we need not consider, in this case, the question of implied warranties or oral warranties.

The contract before us is a written one; it must speak for itself. Where a written contract of warranty is made, oral warranties and implied warranties are all merged in the written contract, and by its terms the parties must be bound as in other cases of written agreements. McClure v. Jeffrey, 8 Ind. 79; Gatling v. Newell, 9 Ind. 572; Smith v. Dallas, 35 Ind. 255; Robinson Machine Works v. Chandler, supra; The Johnston Harvester Co. v. Bartley, supra; Brown v. Russell & Co., 105 Ind. 46, 4 N.E. 428; Conant v. Nat'l State Bank, etc., supra; Seitz v. Brewers' Refrigerating Machine Co., 141 U.S. 510, 35 L.Ed. 837, 12 S.Ct. 46, and cases cited.

There is no statement in the written warranty of the purpose for which the engine in controversy was made. It is described in the written order and warranty as a "traction Atlas second-hand engine on wheels, but that does not define with certainty the use to which it was to be put.

In Webster's Dictionary a "traction engine" is defined to be "a locomotive for drawing vehicles on highways or in the fields."

The engine was "to do as good work as any of its size made for the purpose," but it can not be assumed that it was purchased for threshing purposes, in the absence of an allegation to that effect. The answer avers that "it could not be made to furnish power for ordinary threshing purposes, to run an ordinary thresher," but, as stated, we look in vain for an averment that it was bought for such purpose.

It is averred "that it would not furnish sufficient power with which to draw the separator from one setting to another," but there is no averment in the answer, that it was either made or sold for the purpose of drawing a separator from one setting to another, or that any other machine of the same size made for the same purpose would draw a separator from one setting to another. As heretofore suggested, it is averred "that in fact it was deficient in every particular and phase of mechanism, to the extent that these defendants could not use the same for threshing purposes," but there is no averment that it was manufactured or sold to be used for threshing purposes, or that any engine of its size was manufactured by any person or firm for threshing purposes, or that any engine of any make, manufactured for the purpose for which...