The Springfield Engine And Thresher Company v. Kennedy

• Decision Date: 27 September 1893
• Docket Number: 730
• Parties: THE SPRINGFIELD ENGINE AND THRESHER COMPANY v. KENNEDY ET AL
• Court: Indiana Appellate Court

34 N.E. 856

7 Ind.App. 502

THE SPRINGFIELD ENGINE AND THRESHER COMPANY v. KENNEDY ET AL

No. 730

Court of Appeals of Indiana

September 27, 1893

From the Howard Circuit Court.

Judgment affirmed, at costs of appellant.

J. C Blacklidge, C. C. Shirley and B. C. Moon, for appellant.

M. Bell and W. C. Purdum, for appellees.

OPINION

LOTZ, J.

The appellant was the plaintiff below, and began this action to recover judgment on certain notes, and to foreclose a chattel mortgage securing the same. Pending the suit, the mortgaged property was seized and sold by the appellant under the stipulations contained in the said mortgage, so that the only controversy in this court is as to the right of appellant to a money judgment for the remainder due on the notes. The appellee answered in eleven paragraphs.

1st. That the notes in suit were executed without any consideration.

To the second a demurrer was sustained.

3d. That the notes were paid since the institution of the suit.

4th. Payment in full before suit.

5th. Breach of an implied warranty in the sale of a machine for which the notes in suit were executed.

6th. Breach of a verbal warranty in the sale of said machine.

7th. Also breach of verbal warranty in sale of said machine.

8th was withdrawn.

9th. Breach of a written warranty alleged to be lost.

10th and 11th. Breaches of written warranty, coupled with averments showing that the plaintiff waived the performance of certain conditions in the contract of warranty resting upon the defendants.

A demurrer was sustained to the second and overruled as to the other paragraphs. The plaintiff replied in two paragraphs and a demurrer was sustained to the second. There was a trial of the issues by the court. The court, at the request of appellant, made a special finding of the facts, and stated the conclusions of law thereon. The conclusion of law was that the consideration of the notes in suit had wholly failed, and that the defendants were entitled to judgment for costs.

Appellant assigns as errors the overruling of the demurrers to the 5th, 6th, 7th, 9th, 10th and 11th paragraphs of answer; the sustaining of the demurrer to the second paragraph of reply; and that the court erred in its conclusions of law. There was no motion for a new trial, and the evidence is not in the record. A motion for a new trial calls in question the correctness of the finding of facts, but does not challenge the conclusions of law stated on the facts. An exception to the conclusions of law properly precedes the motion for a new trial, and concedes, for the purpose of securing a decision upon the facts stated in the finding, that the facts are found as the evidence requires. Elliott's App. Proced., section 793.

The facts not being challenged by a motion for a new trial, this court, in the condition of the record, will conclusively presume that the findings of facts are as the evidence requires.

An examination of the record and special findings affirmatively shows that the findings and judgment of the court are based upon the 10th paragraph of the answer and the answer of payment. It is a rule well established, that, where the complaint or answer consists of two or more paragraphs, the overruling of a demurrer to a bad paragraph is not reversible error, if the record affirmatively shows that the findings and judgment of the court rest on other paragraphs of the pleading that are good. Blessing v. Blair, 45 Ind. 546; Keegan v. Carpenter, 47 Ind. 597; Blasingame v. Blasingame, 24 Ind. 86; Nave v. Wilson, Admr., 33 Ind. 294; Wolf v. Schofield, 38 Ind. 175; Peery v. Greensburgh, etc., Turnpike Co., 43 Ind. 321; Hawley, Admr., v. Smith, Admr., 45 Ind. 183; McComas v. Haas, 93 Ind. 276; State, for Use, v. Julian, 93 Ind. 292; Bartlett v. Pittsburgh, etc., R. W. Co., 94 Ind. 281; Louisville, etc., R. W. Co. v. Davis, 94 Ind. 601; City of Aurora v. Bitner, 100 Ind. 396; Sohn v. Cambern, 106 Ind. 302, 6 N.E. 813.

Under these authorities, it is unnecessary for us to determine the sufficiency of any of the paragraphs of the answer, except the tenth. The action of the court, in overruling the demurrers to the other answers, is not reversible error.

The tenth paragraph charges, in brief, that the notes declared on were given for the purchase of one steam vibrating separator, with all the necessary appliances usually furnished with such machines; that said sale was made in pursuance of a written contract entered into between plaintiff and defendants, by which contract the plaintiff warranted that said machinery, with proper use and management, would do as good work as any of its size made for the same purpose, and to be of good materials and durable with proper care; that if said machine should fail to fill said warranty, written notice should be given to plaintiff at Springfield, Ohio, and also to the local agent of whom the machine was purchased, stating wherein it failed to fill said warranty, and a reasonable time allowed to remedy such defect; that if the machine could not be made to fill the warranty, it should be returned to the plaintiff, and plaintiff would cause it to perform good work or return the money and notes given for the same. It was further stipulated that the continued use of said machinery should be evidence of the fulfillment of the warranty and of full satisfaction on the part of the purchasers, who agreed thereafter to make no claim on the plaintiff; and, further, that if the machinery, or any part thereof, should be delivered before settlement should be made as agreed, the defendants should waive all claims under the warranty.

It is further charged, that said machine would not, with proper usage, do as good work as any of the size made for that purpose, and was not properly constructed, and of good materials, and durable with proper care; that, by reason of its defective and imperfect construction, it continuously cut and crushed the wheat, rendering it of little value; that, by reason of its defective construction, it wasted the wheat, and would not properly separate it from the straw, but continually left large amounts of the wheat remaining in the straw, and the same was carried away with the straw, threshed and unthreshed; that the plaintiff failed and refused to cause said machine to do good work and comply with said warranty, and failed to send a competent workman and to make said machine do good work, and failed to cancel and return said notes and mortgage, although defendants repeatedly applied for that purpose to plaintiff's agent who sold them the machine, and failed to furnish another machine; that defendants offered to return said machine and demanded their notes. There are other averments in the paragraph which show how the defendants came to accept the machine before the notes were executed, and why the defendants failed to give written information of the defects to the plaintiff at its home office, and of the efforts made by the plaintiff through its agents to make said machine do good work after notice to them, and of their failure so to do.

As to this paragraph, appellant's counsel say it is defective in that there is no averment that the defendants notified the plaintiff in writing at its home office in Springfield, Ohio. But there is an averment that its general agent was notified, and that through its agent it accepted and acted upon such notice. By such action, the appellant waived the written notice. Nat'l Bank and Loan Co. v. Dunn, 106 Ind. 110, 6 N.E. 131; Gaar, Scott & Co. v. Rose, 3 Ind.App. 269, 29 N.E. 616.

It is also insisted that the paragraph is bad because it shows that the defendants continued the use of the machinery, which, by the terms of the contract, should be evidence of the fulfillment of the warranty. This continued possession and use, however, is shown by the averments to have been at the instigation of the plaintiff's agent, after notice of the defects. It is further contended that the paragraph is defective because the particular defects of the thresher are not shown, and that no sufficient test is averred. The warranty provided that the machine should do good work. The kind of work it did do under proper management is specifically alleged, and it was, under the averments, certainly far from good. Appellant has cited a number of cases to the effect that a proper test must be shown and the defects specifically pointed out. Booher v. Goldsborough, 44 Ind. 490; Robinson Machine Works v. Chandler, 56 Ind. 575; Johnston Harvester Co. v. Bartley, 81 Ind. 406; McClamrock v. Flint, 101 Ind. 278; Flint v. Cook, 102 Ind. 391, 1 N.E. 633; Conant v. Nat'l State Bank, 121 Ind. 323, 22 N.E. 250; Aultman, Miller & Co. v. Seichting, 126 Ind. 137, 25 N.E. 894.

The answer, however, does not fall within these decisions. The rule there announced is one that applies when the obligation to make the test rests upon the party who seeks to enforce the warranty. Under this contract, after notice, the obligation of making the test and of making the machine do good work shifts upon the seller.

We think the demurrer was correctly overruled.

The facts, as found by the court, are substantially as follows The plaintiff is a corporation organized in the State of Ohio, with its principal office in Springfield, in said State; that in the year of 1887, one James B. Mitchner was the agent of the plaintiff at Kokomo, Indiana, for the sale of the plaintiff's machinery; that on the 17th day of July, 1887, the defendants, through said agent, entered into a contract in writing, for the purchase of one steam vibrating separator with tools and necessary appliances and attachments, said contract of purchase being the same as the one set out and filed as an exhibit to the answer, which provided, among other...