Sprankle v. Trulove
| Decision Date | 29 June 1899 |
| Docket Number | 2,875 |
| Citation | 54 N.E. 461,22 Ind.App. 577 |
| Parties | SPRANKLE v. TRULOVE ET AL |
| Court | Indiana Appellate Court |
From the Noble Circuit Court.
Affirmed.
R. P Barr and L. W. Welker, for appellant.
Luke H Wrigley and T. A. Redmond, for appellees.
The complaint of the appellant against the appellees, Thomas Trulove, Henry Trulove, and the Keystone Manufacturing Company, contained four paragraphs, and demurrers of each of the appellees, Trulove and Trulove, to each paragraph for want of sufficient facts were sustained. In the first paragraph it was alleged, in substance, that the appellant was engaged in the business of selling numerous articles,--among them farm machinery, in the city of Kendallville, Noble county, Indiana, under the name of the Sprankle Hardware Company; that he also sold machinery for the appellee, the Keystone Manufacturing Company; that on the 16th of September, 1896, he sold the other appellees a combination corn-husker and fodder-shredder, or cutter, at and for the price of $ 400, and on that day the appellees Trulove and Trulove entered into a written contract with the appellant for the purchase thereof; that said contract was made by the appellees Trulove and Trulove to the appellant in the name of the Keystone Manufacturing Company; that at the time it was the mutual understanding by and between the appellant and the appellees Trulove and Trulove that the appellant was to furnish and deliver to said Trulove and Trulove a combination corn-husker and fodder-shredder manufactured by said company, as set out and described in said written contract, a copy of which was made an exhibit; that, to carry out his part of the contract, the appellant caused said company to ship to Kendallville a number one Keystone corn-husker with fodder-shredder, in all respects as set out in said contract; that, upon the arrival of said machinery at Kendallville, appellant notified said purchasers that it had arrived, and that he was ready to deliver it to them; that the appellees Trulove and Trulove came to Kendallville and inspected the machinery, and said they would accept it, upon condition that appellant would procure as soon as possible from said company a new axle for the truck of said machine; that appellant immediately procured said axle as so requested, and notified the appellees Trulove and Trulove of its arrival, and that they could come and get the machinery; that thereupon, they came and assisted in setting up said machinery at the warerooms of the railroad company at Kendallville, and the appellant turned the same over to them in all things in substantial compliance with said written contract; and they then refused to take and accept said machinery, and left it in said warehouse; that, by the terms of said contract, the appellees Trulove and Trulove were to pay the freight on said machinery from Sterling, Ill., to Kendallville, and to pay $ 200 January 1, 1897, and $ 200 January 1, 1898, with interest; and it was further agreed that in case default should be made in payment of the first installment, then all said installments should at once become due; that said Trulove and Trulove had failed to pay said freight upon the arrival of the machinery as it became due, and said installment of $ 200 due January 1, 1897; that by reason of these defaults the whole contract price became and was due; that appellant had substantially complied in all respects with his part of said contract by turning over to said Trulove and Trulove on the day of October, 1896, said machinery at Kendallville; that the freight on said machinery from Sterling to Kendallville was $ 14.25, which appellant was compelled to and did pay; that said sum of $ 400, with interest from the of October, 1896, was due and unpaid; and that said company had no interest in said contract, as the appellant paid it in cash for said machinery, and was to have the benefit of said contract so executed in the name of said company, which was, in truth and in fact, "a contract to" the appellant, who was to furnish, and did furnish, said machinery to the appellees Trulove and Trulove.
The second paragraph alleged, that the appellant procured and purchased from said company a machine as described in the written contract, and had it shipped to Kendallville, and notified said Trulove and Trulove of its arrival and of his willingness to deliver it to them; that at their instance and request he assisted them in setting up the machine in the freight-house at Kendallville, they having informed him that they had come to Kendallville for it; that he tendered and turned over the machine to them in all respects as he had agreed to do, but that they refused without cause to take and accept it as they had agreed to do, and failed and refused to pay, etc.; that the machine was and had been at the freight-house for the appellees Trulove and Trulove since the day appellant assisted in setting up the same for them; and that the appellant had been damaged by their refusal to accept the machine, and to comply with their part of the contract, in the sum of, etc. Otherwise this paragraph was substantially like the first.
In the third paragraph it was alleged, that the appellees Trulove and Trulove purchased the machine of said Keystone Company, and entered into a written contract for the purchase thereof, being the same writing mentioned in the former paragraphs; that, after its execution, said company sold, assigned, and delivered the contract to the appellant, by delivering it to him and authorizing him to fill the conditions thereof on its part, and giving him all the rights and benefits it had therein; and the appellant proceeded to carry out the conditions of the contract on his part, and caused said company to ship to Kendallville a machine as provided in the contract. It was also alleged, that, after the arrival of the new axle, the appellant, at the warerooms of the railroad company in Kendallville, turned the machine over to the Truloves, as required by the contract, and informed them that it was their property, and left it in their possession, but they then refused to take and accept it, and left it in said warerooms, where it still remained; that said contract was, on the 16th of September, 1896, signed by said Trulove and Trulove, and was accepted and acted upon by said company and by the appellant, by said company's assigning and transferring it to the appellant, and furnishing him with said machine to be delivered and turned over to said Trulove and Trulove in compliance with the contract; and that the contract price was due, etc. Otherwise this paragraph was like the first.
In the fourth paragraph it was alleged, that the appellees Trulove and Trulove on, etc., "entered into a written contract for the purchase from" the Keystone Company of the machine, a copy of which "contract" was made an exhibit, being the written order of the Truloves mentioned in the other paragraphs; that "said contract" was signed by the Truloves "and accepted and acted upon by" the Keystone Company; that, by its terms, the Keystone Company was to ship the machine, etc., setting forth the provisions of the written proposal; that "after the execution of said contract" the Keystone Company "assigned and transferred all of its right and interest therein to this plaintiff by delivering the same to him;" that he procured the machine from the Keystone Company, and caused it to be shipped to Kendallville. It was alleged, that the appellant fully performed his part of said contract, what he had done being stated substantially as in the other paragraphs; that the defendants wrongfully and without cause refused to accept the machine, etc.; that, by reason of the refusal of the Truloves to accept the machine, and to comply with the contract, the appellant was damaged in a sum stated. It was alleged that the Keystone Company was made a defendant to answer as to any interest it might claim.
The exhibit filed with each of these paragraphs was a written order dated at Kendallville, September 16, 1896, signed by the appellees Thomas and Henry Trulove, their post-office being indicated as Ripley, Noble county, Indiana, addressed and proceeding as follows: etc., the machine being described, and a warranty thereof being set forth. It was stipulated that, if the machine would not bear the warranty after a trial of two days, immediate written notice should be "given the Keystone Manufacturing Company by registered letter, or to the agent of whom purchased," etc., and a reasonable time should be given "the Keystone Manufacturing Company, or dealer of whom said machine was purchased, to send a competent person to remedy the difficulty," etc.; that, if the machine could not be made to fill the warranty, it was to be returned by the purchaser to the place where received, and another was to be substituted, etc.; that continued use of the machine should be evidence of the fulfilment of the warranty, "and the purchaser agrees thereafter to make no claim on the Keystone Manufacturing Company." The purchaser agreed to receive the machine on arrival at Kendallville station, and to pay the freight; also to pay for the machine, as recited in the complaint. It was stipulated that, if default should be made in the first payment, all payments should at once become due; that notes should be given for deferred payments when required; that "no verbal statements or agreements will be recognized in connection with this contract;" and it was provided, that "when notes are given in accordance with the ...
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