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will be furnished at factory on receipt of part, the plaintiff specified fifteen reasons why the showing defect.

counterclaim is deficient. Briefly stated, If, upon trial with proper care, the machine those reasons rest on the alleged failure to fails to work properly, the purchaser shall im- show by proper averments the following elemediately give written notice to the seller stat

ments: ing wherein the machine failed, shall allow reasonable time for a competent man to be “That the note was given in payment for the sent to put it in good order, and render neces tractor; that a written notice was given of sary and friendly assistance to operate it. If the failure of the tractor to work properly; the machine cannot be made to work well, the that the tractor was returned; the kind of purchaser shall immediately return it to the work for which the tractor was designed; that seller and the price paid shall be refunded, the tractor was designed to do plowing; that which shall constitute a settlement in full of the the tractor was properly operated; wherein the transaction. It is expressly agreed that the plaintiff failed to operate the tractor after title to the property herein ordered shall not notice; wherein the plaintiff failed to put the pass to the purchaser until full payment there- tractor in good order; that the defendant's for shall have been made, whether notes have ground was in suitable condition for plowing; been given for the purchase price thereof or that the tractor was designed to plow the not."

kind of ground on which it was used; that the

tractor was operated by the defendant; that it Then follow averments showing in detail

was designed to pull drags and harrows; that that there was a breach of the warranty; that the plaintiff agreed to return the purchase notice thereof was given to the plaintiff ; price; that the defendant returned the tracthat thereupon the plaintiff, by one of its of- tor; or that the failure of the tractor propficers, endeavored to operate the tractor and arly to work was not due to the unskillful opto put it in condition to successfully perform erations of it by the defendant.” the work for which it was designed, but in that effort wholly failed; that the machine

The defendant moved the court : "that he was tendered back to the plaintiff; that the be given the opening and closing, and that he plaintiff refused to accept it; and that the be permitted to assume the burden of proof plaintiff has failed to refund the purchase herein.” The motion was sustained. Thereprice.

upon the plaintiff moved the court "that it be The second paragraph of answer admits permitted to assume the burden of proof the execution of the note and contains the herein and to open and close the case." This same averments with respect to the purchase motion was overruled. of the machine, the consideration therefor,

The jurors were peremptorily instructed to and the execution of the written agreement fix the amount of the attorney's fee at $250, as those contained in the first; but it is dis- | if they found for the plaintiff. tinguished from the first by the following

The following verdict was returned: averments :

"We, the jury, find for the defendant on the "That difference arose between the parties $843.50, and that the plaintiff take nothing by

cross-complaint and assess his damages at after the delivery and attempt to operate the tractor as to whether it complied with the war

its complaint herein. ranty; that thereupon the plaintiff and the defendant agreed to compromise and settle

Judgment was rendered on the verdict, their differences, by the terms of which agree- and the plaintiff's motion for a new trial ment and compromise the plaintiff agreed to was overruled. take back the tractor and to furnish in its place The errors assigned challenge the ruling on and stead a farm tractor commonly known and each demurrer and on the motion for a new designated as a Moline tractor; that the plain- | trial. tiff, in consideration of the right to furnish the Moline tractor and to settle the differences evidence or any part thereof.

No attempt has been made to bring up the between the parties, was to keep the cash, the Liberty bond, and the note; the defendant Pattee & Johnson, of Crown Point, and agreed to pay the note and also agreed to pay Grant Crumpacker, of Valparaiso, for appelan additional sum of $200; that the plaintiff lant. has failed and refused to comply with the terms Kelly & Galvin and Daly & Freund, all of of the agreement of settlement, and has failed Valparaiso, for appellee. to furnish a Moline tractor, although the defendant at all times has been and now is ready and willing to pay the additional sum of $200,

DAUSMAN, C. J. (after stating the facts and to pay the note on the furnishing of a Mo

as above). [1] It is urged with much earnestline tractor."

ness that the court erred in overruling the

demurrer to each paragraph of the answer. The counterclaim is substantially the same However, it affirmatively appears from the as the first paragraph of answer, with the record that the verdict rests entirely upon additional averment that the defendant has the counterclaim. Therefore the action of been damaged in the sum of $1,000.

the court in overruling the demurrer to ei Demurrers, for want of facts, addressed ther paragraph of the answer would not conrespectively to each paragraph of answer, stitute reversible error, even if erroneous, and to the counterclaim were overruled. In and we need not consider the sufficiency of its memorandum accompanying the demurrer, either of those paragraphs.

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(146 N.E.) (2-4] Counsel also contend that the court that feature is that the purchaser tendered erred in overruling the demurrer to the coun- the machine back to the seller, and that the terclaim. The contract provides that, if "the seller refused to accept it. "Return," as used machine fails to work properly, the purchas- in the contract, means to bring, carry, or er shall immediately give written notice" send back. Webster's Dic. “Tender" is usuthereof. The averment in the counterclaim ally used in connection with an offer to pay is that the defendant “notified the plaintiff, money; but the word is properly used in conand that thereupon one Leonard Maxwell, an nection with an offer of property other than officer of the company, responded within two money. Mitchell v. Merrill, 2 Blackf. 87, 18 days after the notice and endeavored to op- | Am. Dec. 128. We are of the opinion that erate the tractor." It clearly appears from the averment that the buyer tendered the the contract that the purpose of the notice machine back to the seller and that the seller to be given by the buyer to the seller was refused to accept it, must be held good, esto give the seller an opportunity to send a pecially after trial. competent man to put the tractor in good or- We need not discuss in detail the other specder. There can be no doubt that the seller ifications in the memorandum. It is suffi. could waive the requirement of the contract cient to say that some of them do not go to that the notice of the failure of the tractor to the merits of the controversy; some might work properly should be given in writing, properly have been presented by a motion to since that provision of the contract is for the make definite and certain; and none is of such benefit of the seller. On the averment of the a character as to render the counterclaim counterclaim the presumption arises that the fatally defective. notice was oral. Now, if the counterclaim [6] Under the assignment that the court contained no other averment on this feature, erred in overruling the motion for a new trial, we would have a different question. But that the appellant's main contention is that it was pleading contains the further averment that erroneously deprived of an important right on receipt of the notice the seller promptly —the right to open and close. The reasoning responded, and by one of its officers endeav- on this point is that the closing argument is ored to operate the tractor and to put it in a powerful weapon in the hands of him who condition to successfully perform the work has the privilege of wielding it, and that the for which it was designed. The seller might plaintiff was disadvantaged by having that have ignored the oral notice and stood upon privilege erroneously conferred upon its adthe strict letter of the contract; but that it versary. Whether or not the contention is did not do. The courts generally recognize inherently meritorious we will not attempt to and enforce the rule that, where the buyer determine. The Code prescribes the manner gives notice of defect in a machine pur- in which a jury trial shall be conducted. It chased, which notice is not in accordance prescribes the order in which the evidence with the stipulation in the contract, and the shall be presented, unless the court for speseller promptly responds to the notice and cial reasons shall otherwise direct. Section attempts to remedy the defect, as required 558, Burns' 1914. It provides that the parby his contract, he thereby waives the provi- ties may argue the case to the jury or submit sion of the contract as to the time and man- it to the jury without argument, and that, ner in which the notice should be given. "in the argument, the party having the burCampbell v. Wray, 5 Ind. App. 155, 31 N. E. den of the issue shall have the opening and 824 ; Springfield, etc., Co. v. Kennedy, 7 Ind. the closing." Section 562, Burns' 1914. The App. 502, 34 N. E. 856; Seiberling & Co. 6. appellant concedes that the defendant, by virNewlon, 16 Ind. App. 374, 43 N. E. 151; Hu- tue of his pleadings, assumed the burden of ber Manuf'g Co. v. Busey, 16 Ind. App. 410, all the issues except as to the value of the 43 N. E. 967; Aultman & Co. v. Richardson, attorney's fee. The contention is that as to 21 Ind. App. 211, 52 N. E. 86; Siebe v. Heil- the amount of the attorney's fee the burden man Mach. Works, 38 Ind. App. 37, 77 N. E. was on the plaintiff, The averment in the 300; Daugherty Advance-Rumley, etc., complaint is that “a reasonable attorneys' Co., 190 Iowa, 424, 180 N. W. 277; Emmer- fee for plaintiff's attorneys is $250.” That ich v. Joliet, etc., Co., 206 Ill. App. 415; averment stands wholly uncontroverted. Ditto v. International, etc., Co., 105 Neb. 544, Shall it then be taken as true? The Code 181 N. W. 544; Palmer v. Reeves & Co., 139 provides: Mo. App. 473, 122 S. W. 1119; Monroe v. Cow- "Every material allegation of the complaint nie, 133 Va. 181, 112 S. E. 848; Fairbanks, not controverted by the answer, and every maetc., Co. v. Nelson, 217 F. 218, 133 C. C. A. terial allegation of new matter in the answer 212. The counterclaim sufficiently avers a not controverted by the reply, shall, for the waiver of the stipulation in the contract with purpose of the action, be taken as true. respect to the notice.

* Allegations of value or amount of [5] It is contended that the averments of damage shall not be considered as true by the the counterclaim do not show a compliance Burns 1914.

failure to controvert them." Section 392, with the provision of the contract which stipulates that, “if the machine cannot be made [7] It is clear that the averment must be to work well, the purchaser shall immediate taken as true, unless it is an averment of ly return it to the seller." The averment on value. The trial court adopted the view that

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the truth of the averment stood admitted, , written agreement and warranty the appeland peremptorily instructed the jurors that lee purchased of and from the appellant a if they found for the plaintiff they should farm tractor and "one three-bottom engine include in their verdict $250 as an attorney's plow for the sum of $1,300; that appellee fee. The court may have erred in that in- had paid $700 thereon, paying $500 in cash, struction (see McCloskey v. Davis, 8 Ind. and one $200 Liberty bond, which was acApp. 190, 35 N. E. 187; Elliott's App. Proc. 8 cepted at its face as cash, and that he had 671); but, right or wrong, the instruction executed the note sued on in payment of the stands unchallenged. Indeed, the appellant balance of said purchase price; that said is in no position to challenge an instruction tractor would not do the work it was purso decidedly favorable to it. By that in-chased to do, and would not do the work struction any controversy which may have

which it was intended to do. Said pleading arisen concerning an attorney's fee was com

then sets forth, in detail, wherein said tracpletely eliminated and the error, if any, in tor failed to do the work for which it was awarding the opening and closing to the defendant is rendered harmless.

purchased, and for which it was intended, [8] The appellant has attempted to present

and then alleges that as soon as he discovother questions under the assignment that ered that said tractor would not do said the court erred in overruling the motion for work he notified the appellant, and that one a new trial; but all of them depend upon the Maxwell, an officer of said company, came evidence for their determination, and in the and endeavored to operate the same, but absence of the evidence they cannot be con- could not make said tractor successfully persidered.

form the work for which it was designed, The judgment is affirmed.

and that thereupon the appellee tendered back to appellant the said tractor; that ap

pellant did not return to appellee his said ENLOE, J., dissents.

note, nor did it repay to appellee the money MCMAHAN, J., not participating.

so paid by him on account of the purchase

price thereof as it had agreed to do. There ENLOE, J. (dissenting). . This was an ac

was a prayer for damages in the sum of $1,tion by appellant against the appellee to re- 000. cover upon a promissory note of which the The said written contract of purchase, as appellee was the maker. The complaint was an exhibit, was made a part of said crossin the usual form, and asked for judgment complaint, and, so far as the same is necesupon said note for principal, interest, and at- sary to be considered in determining the torney's fees in the sum of $250 alleging that sufficiency of said cross-complaint, it is as said sum was a reasonable attorney's fee. follows:

To this complaint the appellee filed two af. firinative paragraphs of answer; he also

"If, upon trial with proper care, the mafiled a cross-complaint in one paragraph. shall immediately give written notice to the

chine fails to work properly, the purchaser The appellant demurred to each paragraph seller, stating wherein the machine fails, and of answer, and also to said cross-complaint, shall allow reasonable time for a competent each of which demurrers was overruled, and man to be sent to put it in good order. to each of which rulings the appellant saved If the machine cannot be made to work well, an exception. Thereafter the cause was put the purchaser shall immediately return it to at issue by replies in denial to each of said said seller, and the price paid shall be refundparagraphs of answer, and by answer in de ed, which shall constitute a settlement in full nial to said cross-complaint. A trial by jury the title to the property herein ordered shall

of the transaction. It is expressly agreed that resulted in a verdict for the appellee upon not pass to the purchaser until full payment the issues joined upon his cross-complaint; therefor shall have been made, whether notes there was judgment accordingly, from which have been given for the purchase price or not." this appeal is prosecuted.

(Our italics.) The errors assigned and relied upon in this appeal challenge the action of the trial The rights of the said parties were fixed court, severally, in overruling the said de- by the said contract as they made it, and murrers, and in sustaining the motion of the we must determine the sufficiency of the alappellee to have the opening and closing of legations of said cross-complaint by measurthe argument to the jury.

ing them by the terms of said contract. As the verdict of the jury rests upon said It is fundamental, in the law of contracts, cross-complaint we shall notice first the as- that before a party thereto can claim damsigned error challenging the aforesaid rul- ages as against the other party thereto, on ing thereon.

account of an alleged breach thereof, the in this pleading it is alleged that on a party who would so claim damages must date named the appellee and the appellant himself have complied with such contract"entered into a certain written agreement must have done and performed all things and warranty," and that by the terms of said mentioned in said contract by him to be done

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(146 N.E.) and performed. This is especially true as, will be remembered that the pleading does to the performance by him of things prece- not allege that appellant was thereby fully dent, as it is a maxim of the law that no informed as to each and all the said defects party who has himself broken a contract can complained of; there is no allegation that apcomplain of a breach by the other party sub- pellant was given information as to any parsequent to his own breach. The specific ticular defect. Had said cross-complainant breach relied upon by the appellee in this alleged that "he had fully informed defendcase, and upon which the jury awarded him ant of said defects," then and in that event damages, was the alleged failure of the appel- he would have stated a “conclusion," and a lant to return to him the money paid and “motion to make more specific would have the note given, as provided for in said con- been proper, but, as the pleading stands, it is tract.

not subject to such motion, because here It will be noted that the said written agree- there is an entire absence of a necessary ment—the contract of sale relied upon by allegation, and the pleading is therefore faappellee-provided that, if upon trial with tally defective. proper caré the said machine failed to work It will also be noted that the said contract properly, the purchaser should (a) immedi- of sale provi that: ately give written notice to the seller; and that in said notice he should (b) state where

"If the machine cannot be made to work in said machine failed to do the work for to said seller, and the price shall be refunded,

well, the purchaser shall immediately return it which it was intended. These were condi

which shall constitute a settlement in full of tions precedent, to be performed by the ap- the transaction." (Our italics.) pellee, before he could, as against the appellant, insist upon a rescission of said contract. The allegations of said cross-com

The allegation of said pleading, as to said plaint, so far as they relate to the above condition, is: “This cross-complainant tenmentioned provisions, are:

đered back to said cross-defendant, Maxwell

Implement Company, said tractor.” By the "That as soon as this cross-complainant dis- said contract of sale the purchaser, under covered the fact that said tractor did not per the conditions specified, was given the right, form successfully the work for which it was de- not to tender back said machine to appellant, signed, he notified the said cross-defendant."

but to return said machine to appellant-to

take the said property which he had purIt is not alleged that the notice so given chased back to the place of business of apwas in writing, as required by said contract, pellant and there turn over, or at least offer nor is it alleged that in and by said notice to turn over, to appellant the possession of the appellant was told or informed as to the the same. The return of the property, as particular defects, or ways, or manner, in provided for, was also a condition precedent which said machine failed to do the work to be performed by the appellee. The appelfor which it was intended. For aught that lant, in the pleading under consideraton, has appears in the pleading the appellee may tried, it would seem, to frame his pleading have simply sent verbal notice to the appel- under the rule of the common law. Under lant, giving to it information as to only one this rule it was necessary, in pleading the of the many alleged defects now by it com- performance of conditions precedent, for the plained of, and saying nothing as to any pleader to aver what he had done in the other defect, and giving to appellant no way of performing each of such conditions; chance whatever to remedy any of them. or, if such condition had 'not been by him The presumption is, under the allegations of performed, then he was required to state said pleading, that said notice was not in fully why he had not performed the same, writing. Lamb v. Donovan, 19 Ind. 40; so that the court might be able to say whethPercifield v. Black, 132 Ind. 384, 31 N. E. er such performance had been waived, or 955; Horner v. McConnell, 158 Ind. 280, 63 been excused. Tested by the rules of the N. E. 472; Perkins, etc., Co. v. Yeoman, 23 common law the pleading under consideraInd. App. 483, 55 N. E. 782. However, the tion is fatally defective, and it has been held, appellant in this case disregarded the non- and seems to be the settled law of this state, compliance of the appellee in the matter of that if a party attempts to state the facts the form in which said notice should have constituting performance of a condition, or been given, and by one of its agents respond-conditions precedent, he must state such ed thereto and attempted to adjust said ma- facts with the particularity and strictness rechines, at least in some particular, and it is quired by the rules of the common law, and therefore pow estopped to insist that said the statute cannot aid the pleading. Watnotice was insufficient, as to its form. The son's Revision of Works' Practice, 8 362, and authorities cited in the principal opinion ful- authorities cited. The questions presented ly sustain this conclusion.

to us by the ruling complained of are of law, But as to the contents of said notice it not of fact. When the court overruled the

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demurrer to this cross-complaint, it held as a matter of law that if the appellee should DAVIES V. KELLEY. (No. 18797.) * establish the facts in said pleading alleged, as therein alleged, he would be entitled to

(Supreme Court of Ohio. March 10, 1925.) judgment. This was error. Bowen v. Wood

(Syllabus by the Court.) field, 33 Ind. App. 687, 72 N. E. 162; Wayne, etc., Ass'n v. Beckner, 191 Ind. 664, 134 N. E. 1. Landlord and tenant en 162-Landlord re. 273; Louisville, etc., Ry. Co. v. Widman, 10

taining possession of halls and approaches

must exercise ordinary care to keep them Ind. App. 92, 37 N. E. 554; U. S. Express

in reasonably safe condition. Co. v. Harris, 51 Ind. 127. It is also urged that the court erred in of it, to which access is had by way of balls,

If the owner of a house leases a portion overruling the demurrer to the first para- stairways or other approaches, to be used by graph of answer of appellee. A reading of such tenant in common with the owner or this paragraph discloses that it is laden with tenants of the other portions of the premises, the same infirmities as the said cross-com- and retains the possession and control of such plaint. The demurrer thereto should have halls, stairways or other approaches, it is bis

duty to exercise ordinary care to keep the been sustained.

same in a reasonably safe condition. It is next urged that the court erred in overruling the demurrer of appellant to the 2. Landlord and tenant om 162, 164(2)-Landsecond paragraph of answer of the appellee. lord liable for neglect to maintain porch and

This paragraph of answer, pleaded in bar stairway in proper repair; duty extends to of the suit upon said promissory note, admits

tenants, their employés, guests, and invitees. the execution of said note, the sale of said Where a porch and stairway leading theretractor, etc., and then alleges that:

to are provided, maintained, and controlled by

a landlord for the use of several tenants of “Differences arose between said plaintiff and his building, and are thus used, he is, in gen. this defendant after the delivery and attempt to eral, liable for any injuries arising from his operate said tractor as to whether the same neglect to keep the same in proper repair; such complied with said warranty; that * duty and liability extend not only to the tenthat plaintiff and this defendant agreed to ant bimself, but also to members of his famcompromise and settle their said differences and ily, employés, guests, and invitees. by the terms of said agreement and compromise the said plaintiff agreed to take back said farm

Error to Court of Appeals, Cuyahoga tractor and to furnish in its place and stead a farm tractor commonly known and designated County. as a Moline tractor, and said plaintiff, in con

Action by Jean Joseph Davies, a minor, sideration of the right of furnishing said Moline tractor, and to settle the difference between etc., against Zoa Kelley. Judgment for plainplaintiff and defendant, was to keep the cash tiff was reversed by the Court of Appeals, and Liberty bond as well as said note, which and plaintiff brings error. Reversed.-[By defendant agreed to pay according to the tenor Editorial Staff.] thereof; that said defendant also, in consider

This case originated in the court of comation of the said plaintiff furnishing unto the said defendant the said Moline tractor, agreed mon pleas of Cuyahoga county. The issue to pay a further and additional sum to plain- upon which the case was tried was made by tiff in an amount not to exceed $200."

the third amended petition, the answer, and

reply. It was averred in substance that the It is then alleged that the appellant had defendants, Zoa Kelley and Patrick Kelley, failed to furnish said Moline tractor, as it

owned, controlled, and managed a certain 2had agreed to do.

story apartment or tenement house located If appellant had failed to keep its agree in the city of Cleveland, and that the several ment to furnish such other tractor, as al suites therein, being 20 in number, were leged, this might become the foundation for

leased to nd occupied by various tenants; an action for damages, but the averments of that said suites were so arranged as to have the said paragraph of answer under consid- 10 separate and distinct suites on the first eration fall far short of stating facts sufficient floor, and the same number on the second; to bar the cause of action stated in appel- that Jean Joseph Davies, a child two years lant's complaint. The demurrer to this para- of age, lived with his parents in one of the graph of answer should have been sustained. ground floor apartments; that one of the

In my opinion this cause should be re- suites on the second floor was used and occuversed, with directions to the trial court to pied by a Mrs. Weaver, and another suite, sustain appellant's motion for a new trial, separate and apart therefrom, was used and to sustain appellant's demurrer to the first occupied by a Mr. Niger and his family, and second paragraphs of appellee's answer, both families being tenants of the defendand to sustain the demurrer of appellant to ants; that defendants provided and mainthe cross-complaint of appellee, with leave to tained for the use in common of said two appellee to amend his pleadings, if he shall families, their guests, and invitees, a stairso desire.

way and porch extending across the rear of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied April 16, 1925.

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