Souers v. Zeigler

• Decision Date: 17 March 1920
• Docket Number: 10,295
• Citation: 126 N.E. 483,73 Ind.App. 87
• Parties: SOUERS v. ZEIGLER
• Court: Indiana Appellate Court

126 N.E. 483

73 Ind.App. 87

SOUERS v. ZEIGLER

No. 10,295

Court of Appeals of Indiana

March 17, 1920

From Huntington Circuit Court; Samuel E. Cook, Judge.

Action by Clarence Zeigler against Ethan E. Souers. From a judgment for plaintiff, the defendant appeals.

Affirmed.

George M. Eberhart and Summer Kenner, for appellant.

Fred H Bowers and Milo N. Feightner, for appellee.

OPINION

NICHOLS, C. J.

The complaint in this cause is in three paragraphs, the first being for money due and unpaid; the second, for moneys had and received; and the third, in substance, that: On March 1 1917, appellant turned over to appellee a span of mules at an agreed consideration of $ 475 conditioned on appellee trying said mules and keeping the same for a reasonable time to ascertain if they were sound in body and limb and good workers, and, if not so, appellee was to have the right to return them to appellant and receive back the money. Appellee tried the mules and found that they were not sound in body and limb and were not good workers, and returned them to appellant, pursuant to the contract, and appellant accepted them and turned over to appellee another span of mules, with the agreement that if they were satisfactory appellee and appellant were to agree upon the price to be paid therefor the same to be paid by appellant retaining from the money that had been paid to him the value agreed upon. It was agreed as to the second span that they were to be sound in body and limb and good workers, and they were so warranted by appellant and, failing to be such, appellee was to have the right to return them. Such second span were not sound in body and limb and not good workers, and not satisfactory to appellee and were not worth over $ 250. They were returned to appellant and appellee requested appellant to return said $ 475, but appellant refused to accept the mules and to return the money, or any part thereof. There is a demand for judgment in the sum of $ 250 as the amount held by appellant in excess of the value of the mules.

A demurrer to this complaint was overruled. There was an answer in denial, the cause was submitted to a jury for trial, and there was a verdict for appellee in the sum of $ 175. After motion for a new trial, which was overruled, this appeal is prosecuted. Appellant assigns as error the ruling of the court in overruling the demurrer to the third paragraph of complaint and in overruling appellant's motion for a new trial.

Appellant contends that appellee attempts to state by his third paragraph of complaint a cause of action upon the theory of breach of warranty, and also upon the theory of rescission of contract. We do not so construe the third paragraph. The attempt upon the part of appellee to return the mules was not by way of rescission, but was in accordance with the terms of the contract as alleged. We think the third paragraph of complaint states a cause of action for damages for the breach of a contract, and that the demurrer thereto was properly overruled. If the facts stated in the complaint were not sufficiently alleged to show the nature and particulars of the breach, appellant's remedy was by motion to make the complaint more specific. § 343a Burns' Supp. 1918 Acts 1917 p. 176; Brower v. Nellis (1892), 6 Ind.App. 323, 33 N.E. 672; Starkey v. Starkey (1894), 136 Ind. 349, 36 N.E. 287; Grand Trunk, etc., R. Co. v. State (1907), 40 Ind.App. 695, 82 N.E. 1017; Clow v. Brown (1898), 150 Ind. 185,...