Siebe v. Heilman Mach. Works

• Decision Date: 14 March 1906
• Docket Number: No. 5,615.,5,615.
• Citation: 77 N.E. 300,38 Ind.App. 37
• Parties: SIEBE et al. v. HEILMAN MACH. WORKS.
• Court: Indiana Appellate Court

38 Ind.App. 37

77 N.E. 300

SIEBE et al.

v.HEILMAN MACH. WORKS.

No. 5,615.^*

Appellate Court of Indiana, Division No. 2.

March 14, 1906.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by the Heilman Machine Works against Christian F. Siebe and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.Cox & Armstrong, Leo H. Fisher, and Chas. F. Coffin, for appellants. Phillip W. Frey, for appellee.

WILEY, J.

Action by appellee against appellants upon two promissory notes given for the purchase of a traction engine. Appellants answered by pleading facts upon which an allegation of breach of warranty was based, and the waiver by appellee of a certain notice provided for in the warranty. Trial by jury, resulting in a verdict for appellee directed by a peremptory instruction. Appellants' motion for a new trial was overruled, and judgment pronounced upon the verdict. A number of errors are assigned, but we will only consider those to which our attention has been called in the briefs.

After the cause had been put at issue and was ready for trial, the court below permitted appellee to withdraw its general denial to appellants' cross-complaint or counterclaim, and also permitted it to file for the first time a demurrer to such counterclaim, which was sustained, and refused to allow appellants to file any amended counterclaim. The first question discussed is the refusal of the trial court to permit appellants to file their amended counterclaim, and it is urged that in such refusal there was an abuse of judicial discretion. It is the rule long established in this state that the statute which allows amendments of pleadings is to be liberally construed, and to that end the trial court is endowed with great discretionary power, and its action will not be ground for reversal unless it shall affirmatively appear to the appellate tribunal that harm to the complaining party has resulted therefrom. Blair v. Porter, 12 Ind. App. 296, 38 N. E. 874, 40 N. E. 81;Keck v. State, 12 Ind. App. 119, 39 N. E. 899;Burnett v. Milnes, 148 Ind. 230, 46 N. E. 464. The answer, or counterclaim, to which a demurrer was addressed and sustained, is in the record, as is likewise the amended counterclaim which appellants offered to file, but were not permitted by the court to file. We have examined and compared these two pleadings and are unable to distinguish any material difference in them. The same evidence that would have been admissible under the facts pleaded in the tendered answer would have been admissible under the one to which a demurrer was sustained. If the court had permitted appellants to have filed their amended counterclaim or answer, it would have been inconsistent with its ruling in sustaining the demurrer to the original pleading; for in their legal effect the two pleadings were identical. If the original counterclaim was vulnerable to an attack of a demurrer (and as to this we express no opinion), the offered pleading was likewise defective. On the other hand, if the original pleading was good as against a demurrer (and as to this we express no opinion), the offered pleading was also good. It follows, therefore, that if appellants were entitled to any benefits accruing to them under the facts pleaded, they could have secured their rights by excepting to the ruling sustaining the demurrer and standing upon such ruling. Under the rule above stated, relating to the discretionary power of the trial court, we have no hesitancy in declaring that it does not affirmatively appear from the record that any harm came to appellants by the refusal of the court to permit them to file their amended counterclaim. This being true, the court did not disabuse its discretion.

Counsel for appellants next direct their argument to the action of the trial court in directing the jury by written instruction to return a verdict for appellee. The engine for which the notes in suit were given was sold by appellee to appellant Louis F. Siebe (Christian F. Siebe being a surety), upon a printed or written warranty. Appellants based their defense upon a breach of the terms of this warranty, and also a waiver. One of the conditions of the warranty was: “If inside of six days from the day of its first use it shall fail in any respect to fill this warranty, written notice shall be given immediately by the purchaser, Siebe, to the Heilman Machine Works, at its home office, Evansville, Ind., by registered letter, stating...