Shirk v. Mitchell

• Citation: 36 N.E. 850, 137 Ind. 185
• Case Date: March 15, 1894
• Court: Supreme Court of Indiana

137 Ind. 185
36 N.E. 850

SHIRK et al.
v.
MITCHELL et al.

Supreme Court of Indiana.

March 15, 1894.

Appeal from circuit court, Clinton county; S. H. Doyal, Judge.

Action by Milton Shirk against John F. Mitchell and others upon promissory notes and to foreclose a mortgage. Defendants filed a cross complaint, and had a summons thereon issued against James B. Michenor. Judgment for defendants. Plaintiff and James B. Michenor appeal. Reversed.

Blacklidge, Shirley & Moon, for appellants. J. G. Adams and J. A. Swoveland, for appellees.

DAILEY, J.

The appellees, John F. Mitchell and John F. Trott, on November 27, 1886, purchased of appellant James B. Michenor, agent for the Springfield Engine & Thresher Company, a traction Atlas secondhand engine, on wheels, 10-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 & 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 Michenor 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 in 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. Michenor, 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

[36 N.E. 851]

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 Michenor. 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 Michenor 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, 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. Michenor 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 Rev. St. 1894, § 662, 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;Machine Works v. Chandler, 56 Ind. 575;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. Bank, 121 Ind. 323, 22 N. E. 250;Aultman, Miller & Co. v. Seichting, 126 Ind. 137, 25 N. E. 894;Lincoln v. Ragsdale (Ind. App.) 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...