Smith v. Borden

• Citation: 66 N.E. 681, 160 Ind. 223
• Case Date: March 12, 1903
• Court: Supreme Court of Indiana

160 Ind. 223
66 N.E. 681

SMITH et al.
v.
BORDEN.

Supreme Court of Indiana.

March 12, 1903.

Appeal from Circuit Court, De Kalb County; E. D. Hartman, Judge.

Action by Kirk A. Smith and others against Reuben A. Borden. From a judgment in favor of defendant, plaintiffs appeal. Transferred from the Appellate Court under section 1337u, Burns' Rev. St. 1901. Affirmed.

[66 N.E. 682]

Willis Rhoads, for appellants.

JORDAN, J.

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, fourth, and third 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 first assignment of error, and it must follow that the questions which they seek to present for our consideration under that assignment cannot 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 purposes 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 a 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 20 to 30 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 20 to 30 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 1 to 2 bushels of grain per hour. It is averred that the machine is wholly worthless for any of the aforesaid...