Smith v. Borden
| Decision Date | 12 March 1903 |
| Docket Number | 20,022 |
| Citation | 66 N.E. 681,160 Ind. 223 |
| Parties | Smith et al. v. Borden |
| Court | Indiana Supreme Court |
From DeKalb Circuit Court; E. D. Hartman, Judge.
Action by Kirk A. Smith and others against Reuben A. Borden on a promissory note. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court, under § 1337u Burns 1901.
Affirmed.
Willis Rhoads, for appellants.
R. W McBride, C. S. Denny and J. W. Baxter, for appellee.
Action by appellants to recover of appellee on a promissory note executed by him for the sum of $ 240. Answer in four paragraphs. Reply thereto. On the issues joined there was a trial by jury, and a verdict returned in favor of the defendant--appellee herein--and over the plaintiffs' motion for a new trial judgment was rendered that the defendant recover costs of the plaintiffs, and the latter were awarded, by the judgment, a return of the property sold by them to the defendant.
Appellants rely for a reversal on the assignments that the court erred (1) In overruling their demurrer to the second, third, and fourth paragraphs of the answer, the latter paragraph being in the nature of a counterclaim; (2) in denying their motion to strike out and reject said third paragraph.
While the record discloses that appellants demurred separately and severally, for insufficiency of facts, to each of these paragraphs of answer, nevertheless it discloses only that the demurrer was overruled as to the second and fourth, but is entirely silent in respect to the ruling thereon in regard to the third paragraph; hence we are not apprised as to the ruling thereon in respect to said paragraph. Under the circumstances, therefore, there is no ruling or decision of the lower court upon which appellants can properly predicate their second assignment of error, and it must follow that the questions which they seek to present for our consideration under that assignment can not be considered.
The alleged error of the court in denying the motion to strike out and reject the third paragraph of the answer must be dismissed, without consideration, for two reasons: (1) The motion has not been made a part of the record by a bill of exceptions, or by order of court; (2) counsel for appellants have virtually failed to present any argument to establish the fact that in denying the motion the court committed an error.
The first paragraph of the answer admits the execution of the note in suit, but alleges that it was executed by the defendant without any consideration whatever. The second also admits its execution, but avers that it was executed for no other or different consideration than the purchase price of a wind-wheel, and the attachments thereto, sold by the plaintiffs to the defendant for the particular purpose of furnishing power to pump water and to grind grain for domestic use, in order to supply the stock on defendant's farm with food and water. It is shown that the plaintiffs at the time they sold said wheel to the defendant represented and stated to him that the wheel, together with the attachments connected therewith and belonging thereto, was in perfect condition for the purposes for which it was sold, and was especially adapted to perform such work; that the wheel and its attachments, when put up and connected together, would constitute a first-class and complete machine to grind grain and pump water sufficient to supply water and food for stock; that it was a machine of such quality and character that under the force of a moderate wind it was capable of furnishing power to grind from twenty to thirty bushels of grain for stock food each and every hour it was operated; that with a very light wind in a short time the machine could and would pump an abundance of water, sufficient for all of the needs of the defendant, and that it was a first-class machine for the aforesaid uses and purposes. It is further shown that the defendant, at the time he purchased the wheel or machine of the plaintiffs, was ignorant of the character or nature of such machines, and especially was he ignorant of the merits and qualities of the one in question. He believed the aforesaid representations and statements made by the plaintiffs in regard to this machine, and relied upon them as true, and was thereby induced to purchase said wheel or machine from plaintiffs, and permit them to deliver it to him, and to execute the note in suit for $ 240, the purchase price thereof. Facts are alleged which go to negative the representations and statements as made by the plaintiffs in respect to the wheel, and it is disclosed that when the machine was put in operation it did not conform to or satisfy the aforesaid representations and statements made by the plaintiffs in regard thereto; that it was not first-class and complete for any of the aforesaid purposes for which it was sold to the defendant. After the plaintiffs had placed or erected it on defendant's premises, it failed to operate so as to pump water for stock or for any other purpose. Under the force of a very hard and strong wind it pumped only a very small stream or quantity of water, not sufficient to furnish the defendant's stock with water; that under the force of a moderate wind it failed to grind twenty to thirty bushels of grain per hour, as the plaintiffs had stated and represented it would, but required the force of a very high and strong wind to enable it to grind from one to two bushels of grain per hour. It is averred that the machine is wholly worthless for any of the aforesaid purposes for which it was sold to the defendant, and that it is utterly worthless to him for any purpose, and that he has frequently notified the plaintiffs of its worthless character and condition. On several different occasions plaintiffs sent their agents and employes to repair or adjust the wheel in order to make it perform the work which they had represented and stated to defendant it would perform, but each time they wholly failed to make the machine do the work which they had represented it would perform, and each time left it with the defendant in a worthless condition. Thereupon the defendant notified plaintiffs to take, detach, and remove said wheel, together with all of its attachments, from his premises, and in the pleading in question he continues to make the offer to return the machine to the plaintiffs, and requests that they take possession thereof and remove it from his premises. Wherefore it is averred that the consideration of the note in suit has failed, and he prays judgment for costs.
Counsel for appellants contend that the facts, as averred in this paragraph, are neither sufficient to establish a warranty nor such a breach thereof as show an entire failure of the consideration of the note in suit. It is claimed that the answer is neither sufficient to defeat a recovery on the note, upon the ground that there was a warranty of the machine in question, nor upon the ground of fraud in the sale thereof. In the latter contention--that the paragraph is not sufficient on the grounds of fraud--we fully concur. If it can be upheld on demurrer it must be for the reason that under its averments an express warranty of the property and a breach thereof are shown. Inasmuch as the paragraph is pleaded in bar of the entire cause of action, the facts therein set up or averred must be such as show or establish an entire failure of the consideration for which the note was executed; otherwise the pleading must be held bad on demurrer. The paragraph in dispute is by no means a model pleading, nor can it be said to have been drafted in an orderly method, and possibly it would be subject, at least, to a motion to make some of its averments more specific and certain, for to an extent they may be said to be vague and uncertain, but not to such a degree as to render it bad on demurrer.
Under the provisions of our civil code, the rule is...
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