The J. F. Seiberling & Co. v. Newlon

• Decision Date: 04 March 1896
• Docket Number: 1,578
• Citation: 43 N.E. 151,16 Ind.App. 374
• Court: Indiana Appellate Court
• Parties: THE J. F. SEIBERLING & CO. v. NEWLON

43 N.E. 151

16 Ind.App. 374

THE J. F. SEIBERLING & CO. v. NEWLON

No. 1,578

Court of Appeals of Indiana

March 4, 1896

Rehearing denied November 24, 1896.

From the Washington Circuit Court.

Affirmed.

J. A Bradley, Harvey Morris, J. C. Lawler and D. M. Alspaugh, for appellant.

Milton B. Hottel and John A. Zaring, for appellee.

OPINION

ROSS J.

The appellant sued appellee to recover the purchase price of an Empire reaping machine sold by it to him and warranted to do good work. The contract of sale was reduced to writing and was the basis of appellant's action. To the complaint appellee filed an answer of several paragraphs, to each of which demurrers for want of facts were filed and overruled by the court, and exceptions reserved to such rulings. The appellant filed replies to the special answers and upon the issues thus joined, the cause was submitted to the court for trial. At the request of the appellant the court made a special finding of facts with conclusions of law thereon. From a judgment rendered in favor of the defendant the plaintiff appeals.

The first, second, third and fourth specifications of error assigned relate to the rulings of the court below upon the demurrers to the appellee's answer. The second specification seeks to question the sufficiency of the third paragraph of the answer, but inasmuch as the court makes its findings expressly under the other paragraphs, the error in overruling the demurrer to the second paragraph, if we concede that paragraph to be bad, was harmless.

The second, fourth and fifth paragraphs are the same in substance as those recently held good in the case of Seiberling & Co. v. Rodman, 14 Ind.App. 460, 43 N.E. 38.

The material facts found by the court within the issues joined are in substance as follows: That the appellant, a corporation engaged in the manufacture and sale of machinery, on the 30th day of May, 1893, through its local agent, John C. Grubb, resident in Washington county, Indiana, who had the "selling, adjusting, setting up and otherwise managing in the sale of" appellant's combined reaper and binder, known as the Empire machine, sold to the appellee one of its machines for which he agreed to pay $ 120.00 on the 1st day of September, 1893, the contract of sale having been reduced to writing and duly signed by the parties. In the contract of sale the appellant warranted the machine to be well made, of good material and, if properly managed, to do good work. And it was provided that the appellee should use the machine one day in the harvest field, to give it a fair trial, he to see that it was properly managed, and if upon such trial it did not do good work, he was "to give written notice both to the agent from whom he received the machine and to J. F. Seiberling & Co., Akron, Ohio.," stating wherein it failed to do good work, and to allow appellant reasonable time to get to the machine and remedy the defect, if any, and if appellant then failed to make it do good work, appellant should either give him a new machine or refund the money paid, or in case he had given notes therefor, to cancel his notes. That the continued possession of the machine after trial was to be conclusive evidence that it filled the warranty. On the 23d day of June, 1893, the appellant delivered the machine to the appellee at Salem, and he took it to his farm and on the 26th day of June, in the presence of appellant's selling agent gave the machine a fair trial, and it failed to do good work (the court finding specifically wherein it failed to do good work); and that appellant's agent tried to remedy the defects and to make the machine work properly and do good work, but that he failed to succeed. That said agent, seeing the imperfect work the machine was doing, urged appellee to continue the trial "alleging that as the paint wore off, and if freely oiled, the machine would work all right." That appellee complied with the request and continued the trial on the three succeeding days, during a part of which time appellant's agent was present, but the machine still continued to do bad and unsatisfactory work; that said agent again undertook to remedy the defect but failed, and then told appellee to give it another trial and if it did not do better work, for him to return it. That appellee gave it another trial and it failing to do good work, on the 5th day of July, 1893, he "duly mailed a notice in writing to plaintiff [appellant] at Akron, Ohio, stating therein that the machine in controversy did not do the work as it was warranted to do and that it was worthless and proposing to return it; and on same day handed to said Grubbs [appellant's agent] a written...