Smith v. Barber
| Decision Date | 06 June 1899 |
| Docket Number | 18,306 |
| Citation | 53 N.E. 1014,153 Ind. 322 |
| Parties | Smith et al. v. Barber |
| Court | Indiana Supreme Court |
Rehearing Denied Oct. 24, 1899.
From the Boone Circuit Court.
Affirmed in part and reversed in part.
Ira M Sharp, S. M. Ralston, Michael Keefe, B. K. Elliott and W. F Elliott, for appellants.
B. S. Higgins, P. H. Dutch, E. A. Doolittle and W. A. Dutch, for appellee.
By a written contract, appellee agreed to furnish and set up in good working order, for appellants, a plant for the manufacture of ice, of the capacity of three tons daily, the power required to operate it not to exceed five horse. Appellants agreed to furnish the buildings, necessary foundations, woodbrine and outside tanks, power and water, shaftings, hangers and pulleys necessary to transmit power to the compressor, and, during the test trial of the machinery, the power, oil, light, water, other incidentals, and necessary assistance. After it was started, appellee was to furnish an engineer to have charge of the operation of the machine for five days, during which time if it produced the stipulated amount of ice, and in other respects met the requirements of the contract, at the end of said period the plant was to be accepted by appellants and the full purchase price, $ 1,100, paid in cash. It was further stipulated that "all property rights in the plant are to remain in us [appellee] until it is paid for." During the progress of the construction, appellee furnished divers articles not embraced in the contract.
The suit was begun by appellants to recover damages for the breach of the contract, and, as ancillary, plaintiffs caused a writ of attachment to be sued out and levied upon certain personal property, alleged to be owned by the defendant. The complaint was in four paragraphs. The first paragraph alleged the execution of the contract and the failure of the defendant to deliver the property in accordance with the stipulations thereof, and that the market price or value of said machine at the time and place of its delivery as contemplated by the contract, was $ 2,600, and the plaintiffs demanded judgment for $ 1,500 damages sustained by them by reason of the non-delivery of the machine.
The second paragraph was upon an account for work and labor, a bill of particulars of which was filed therewith.
The third paragraph was upon an alleged oral contract for the furnishing, building, and equipping of an ice making plant of three tons freezing capacity daily, consisting of certain machinery therein described, the contract price of which was alleged to be $ 1,100, and that the machine was to remain the property of defendant until the same should be paid for in full; that the defendant had failed to deliver the machine according to the terms of the said contract.
The fourth paragraph alleged that by said written contract the plaintiffs were bound to do certain work and furnish a certain part of said machine, to wit, the foundation, building, and tanks; that in complying with their part of said contract, they had expended the sum of $ 300; that defendant had failed to comply with his part of the contract in this, to wit: That he had failed to deliver the machine described in and contemplated by said written contract, and that thereby the plaintiff's work and labor and material furnished were rendered entirely worthless, and they demand judgment for $ 400.
To this complaint the defendant answered a general denial and also a paragraph of set-off and four paragraphs of counterclaim. The set-off alleges the furnishing by the defendant to the plaintiffs at their special instance and request of certain machinery and articles of personal property amounting in all to the sum of $ 1,700.40, one item of which is dated May 25, 1895, and noted as: One three-ton ice-machine, $ 1,100.
In the first paragraph of his counterclaim, the defendant admits the execution of the written contract and specifically avers that he did erect the ice plant in strict compliance with his contract, and that he performed the conditions and stipulations upon his part of said contract in every respect and particular except when he was prevented from so doing by the plaintiffs; that said plaintiffs refused after said plant was started to furnish the necessary power, oil, light, water, and necessary assistance, necessary shafting, hangers, etc., to enable the defendant to make the trial run of five days, to test the machine, and did obstruct the work in the erection of the plant, by throwing off the belts, and by refusing to furnish the power and the tanks; that the plant was constructed by the counterclaimant in conformity with the contract, and that the contract price of $ 1,100 is due and unpaid; that, outside the contract, defendant furnished the plaintiffs, at their special instance and request, divers articles set down in a bill of particulars, all of the value of $ 625, which is also unpaid; that the plaintiffs have taken and now hold full possession and control of said ice plant and refuse to allow the defendant any control thereof; that the defendant is damaged by the plaintiff's breach of said contract, in failing to pay for the ice plant and extras and by failing to keep their contract, in the sum of $ 2,300, which is due and unpaid. Prayer for judgment and that the same be declared a lien upon the plant and one and a half acres of land upon which it is situate.
The second paragraph of the counterclaim contains substantially the same facts as the first and adds that the plaintiffs waived the five days trial test by preventing the counterclaimant from making it, by words and acts.
The third paragraph seeks to recover for the property furnished by the defendant outside the written contract; and the fourth paragraph sets up the written contract and seeks to recover damages for the fraud of the plaintiffs, and to have the property in controversy "decreed to be the property of this defendant."
Demurrers to answer of set-off and to each paragraph of the counterclaim were severally overruled. There was a trial by the court, a special finding of facts and conclusions of law, and judgment in favor of appellee.
Separate error is assigned upon the overruling of the demurrers, upon the conclusions of law, and upon the overruling of appellants' motion for a venire de novo, and for a new trial. The facts stated in the special finding are within and applicable to the issues joined upon the complaint, the answer of set-off, and first paragraph of the counterclaim and we will, therefore, confine our consideration to the sufficiency of the answer of set-off, the first paragraph of the counterclaim, and the conclusions of law stated upon the facts found thereunder. If the facts found rest upon a good paragraph, it is harmless error to overrule demurrers to bad paragraphs of the same pleading. Cincinnati, etc., R. Co. v. Cregor, 150 Ind. 625, 627, 50 N.E. 760; Pittsburgh, etc., R. Co. v. Moore, 152 Ind. 345, 53 N.E. 290.
It is shown from the counterclaim and special finding that appellants contracted with appellee for an ice plant for the price of $ 1,100; that appellants were to furnish the building, foundation for the compressor, tanks, operating power, shafting, water, and necessary assistance, and pay the full purchase price at the end of five days successful test. Appellee was to construct the plant to produce a fixed amount of ice daily, with a power not to exceed five horse. Appellee performed all the conditions of his contract, except making the five days test, and in this he was prevented by the conduct of appellants. Appellants have possession and control of the plant, and exclude appellee from any control thereof; the purchase price remains wholly unpaid; the title to the property furnished by appellee under the written contract was to remain in him until fully paid for.
By the counterclaim, appellee seeks to recover the contract price of the plant and for certain goods furnished outside the written contract, and to have a lien declared upon the premises for the property furnished under the written contract.
The first conclusion of law states that appellee Barber is entitled to recover, on his counterclaim, the sum of $ 1,100, that sum being due and owing him from the plaintiffs upon the written contract in suit. The second states that appellee is entitled to recover of the plaintiffs, on his set-off after deducting all sums due from him to the plaintiffs, the sum of $ 249.97. Third, that appellee is entitled to recover of the plaintiffs the aggregate sum of $ 1,349.97.
The contract sued on is one of conditional sale. Under the rule governing such contracts, the appellee, as vendor, having delivered personal property and constructed it upon appellants' premises into a manufacturing plant with their knowledge and cooperation, under a contract of sale with appellants, in which it was stipulated that the title to the property should remain in the vendor until fully paid for, and the property and its construction having conformed to the vendor's contract, upon default by the vendees to pay the purchase price according to their agreement, the vendor had the right of election to retake the property or to treat the sale as absolute and sue for the price. Crompton v. Beach, 62 Conn. 25, 36 Am. St. 323, 25 A. 446; Parke, etc., Co. v. White River, etc., Co., 101 Cal. 37, 35 P. 442; Holt Mfg. Co. v. Ewing, 109 Cal. 353, 42 P. 435; Bailey v. Hervey, 135 Mass. 172; Bank v. Thomas, 69 Tex. 237, 6 S.W. 565; McRae v. Merrifield, 48 Ark. 160, 2 S.W. 780; Heller v. Elliott, 45 N.J.L. 564; Button v. Trader, 75 Mich. 295, 42 N.W. 834; Seanor v. McLaughlin, 165 Pa. 150, 30 A. 717; 6 Am. & Eng. Ency. of Law, (2nd. ed.), p. 480.
In his counterclaim appellee sues for...
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