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(146 N.E.)

We need not discuss in detail the other specifications in the memorandum. It is sufficient to say that some of them do not go to the merits of the controversy; some might properly have been presented by a motion to make definite and certain; and none is of such a character as to render the counterclaim fatally defective.

[6] Under the assignment that the court erred in overruling the motion for a new trial, the appellant's main contention is that it was erroneously deprived of an important right

[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 order. There can be no doubt that the seller could waive the requirement of the contract that the notice of the failure of the tractor to work properly should be given in writing, since that provision of the contract is for the benefit of the seller. On the averment of the counterclaim the presumption arises that the notice was oral. Now, if the counterclaim contained no other averment on this feature, we would have a different question. But that pleading contains the further averment that on receipt of the notice the seller promptly responded, and by one of its officers endeavored to operate the tractor and to put it in condition to successfully perform the work for which it was designed. The seller might have ignored the oral notice and stood upon the strict letter of the contract; but that it did not do. The courts generally recognize and enforce the rule that, where the buyer gives notice of defect in a machine purchased, which notice is not in accordance with the stipulation in the contract, and the seller promptly responds to the notice and attempts to remedy the defect, as required by his contract, he thereby waives the provision of the contract as to the time and manner in which the notice should be given. Campbell v. Wray, 5 Ind. App. 155, 31 N. E. 824; Springfield, etc., Co. v. Kennedy, 7 Ind. App. 502, 34 N. E. 856; Seiberling & Co. v. Newlon, 16 Ind. App. 374, 43 N. E. 151; Huber Manuf'g Co. v. Busey, 16 Ind. App. 410, 43 N. E. 967; Aultman & Co. v. Richardson, 21 Ind. App. 211, 52 N. E. 86; Siebe v. Heilman Mach. Works, 38 Ind. App. 37, 77 N. E. 300; Daugherty v. Advance-Rumley, etc., Co., 190 Iowa, 424, 180 N. W. 277; Emmerich v. Joliet, etc., Co., 206 Ill. App. 415; Ditto v. International, etc., Co., 105 Neb. 544, 181 N. W. 544; Palmer v. Reeves & Co., 139 Mo. App. 473, 122 S. W. 1119; Monroe v. Cownie, 133 Va. 181, 112 S. E. 848; Fairbanks, etc., Co. v. Nelson, 217 F. 218, 133 C. C. A. 212. The counterclaim sufficiently avers a waiver of the stipulation in the contract with respect to the notice.

[5] It is contended that the averments of the counterclaim do not show a compliance with the provision of the contract which stipulates that, "if the machine cannot be made to work well, the purchaser shall immediately return it to the seller." The averment on

the right to open and close. The reasoning on this point is that the closing argument is a powerful weapon in the hands of him who has the privilege of wielding it, and that the plaintiff was disadvantaged by having that privilege erroneously conferred upon its adversary. Whether or not the contention is inherently meritorious we will not attempt to determine. The Code prescribes the manner in which a jury trial shall be conducted. It prescribes the order in which the evidence shall be presented, unless the court for special reasons shall otherwise direct. Section 558, Burns' 1914. It provides that the parties may argue the case to the jury or submit it to the jury without argument, and that, "in the argument, the party having the burden of the issue shall have the opening and the closing." Section 562, Burns' 1914. The appellant concedes that the defendant, by virtue of his pleadings, assumed the burden of all the issues except as to the value of the attorney's fee. The contention is that as to the amount of the attorney's fee the burden was on the plaintiff. The averment in the complaint is that "a reasonable attorneys' fee for plaintiff's attorneys is $250." That averment stands wholly uncontroverted. Shall it then be taken as true? The Code provides:

"Every material allegation of the complaint not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall, for the purpose of the action, be taken as true. Allegations of value or amount of damage shall not be considered as true by the failure to controvert them." Section 392, Burns' 1914.

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[7] It is clear that the averment must be taken as true, unless it is an averment of value. The trial court adopted the view that

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. §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 so decidedly favorable to it. By that instruction any controversy which may have arisen concerning an attorney's fee was completely eliminated and the error, if any, in awarding the opening and closing to the defendant is rendered harmless.

[8] The appellant has attempted to present other questions under the assignment that the court erred in overruling the motion for a new trial; but all of them depend upon the evidence for their determination, and in the absence of the evidence they cannot be considered.

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ENLOE, J. (dissenting). This was an action by appellant against the appellee to recover upon a promissory note of which the appellee was the maker. The complaint was in the usual form, and asked for judgment upon said note for principal, interest, and attorney's fees in the sum of $250 alleging that said sum was a reasonable attorney's fee.

To this complaint the appellee filed two affirmative paragraphs of answer; he also filed a cross-complaint in one paragraph. The appellant demurred to each paragraph of answer, and also to said cross-complaint, each of which demurrers was overruled, and to each of which rulings the appellant saved an exception. Thereafter the cause was put at issue by replies in denial to each of said paragraphs of answer, and by answer in denial to said cross-complaint. A trial by jury resulted in a verdict for the appellee upon the issues joined upon his cross-complaint; there was judgment accordingly, from which this appeal is prosecuted.

The errors assigned and relied upon in this appeal challenge the action of the trial court, severally, in overruling the said demurrers, and in sustaining the motion of the appellee to have the opening and closing of the argument to the jury.

As the verdict of the jury rests upon said cross-complaint we shall notice first the assigned error challenging the aforesaid ruling thereon.

In this pleading it is alleged that on a date named the appellee and the appellant "entered into a certain written agreement

tractor would not do the work it was purchased to do, and would not do the work which it was intended to do. Said pleading then sets forth, in detail, wherein said tractor failed to do the work for which it was purchased, and for which it was intended, ered that said tractor would not do said and then alleges that as soon as he discovWork he notified the appellant, and that one Maxwell, an officer of said company, came and endeavored to operate the same, but could not make said tractor successfully perform the work for which it was designed, and that thereupon the appellee tendered back to appellant the said tractor; that appellant did not return to appellee his said note, nor did it repay to appellee the money so paid by him on account of the purchase price thereof as it had agreed to do. There was a prayer for damages in the sum of $1,000.

The said written contract of purchase, as an exhibit, was made a part of said crosscomplaint, and, so far as the same is necessary to be considered in determining the sufficiency of said cross-complaint, it is as follows:

"If, upon trial with proper care, the mashall immediately give written notice to the chine fails to work properly, the purchaser seller, stating wherein the machine fails, and shall allow reasonable time for a competent man to be sent to put it in good order. If the machine cannot be made to work well, the purchaser shall immediately return it to said seller, and the price paid shall be refunded, which shall constitute a settlement in full the title to the property herein ordered shall of the transaction. It is expressly agreed that not pass to the purchaser until full payment therefor shall have been made, whether notes have been given for the purchase price or not." (Our italics.)

The rights of the said parties were fixed by the said contract as they made it, and we must determine the sufficiency of the allegations of said cross-complaint by measuring them by the terms of said contract.

It is fundamental, in the law of contracts, that before a party thereto can claim damages as against the other party thereto, on account of an alleged breach thereof, the party who would so claim damages must himself have complied with such contract— must have done and performed all things

and performed.

(146 N.E.)

This is especially true as to the performance by him of things precedent, as it is a maxim of the law that no party who has himself broken a contract can complain of a breach by the other party subsequent to his own breach. The specific breach relied upon by the appellee in this case, and upon which the jury awarded him damages, was the alleged failure of the appellant to return to him the money paid and the note given, as provided for in said contract.

It will be noted that the said written agreement-the contract of sale relied upon by appellee-provided that, if upon trial with proper caré the said machine failed to work properly, the purchaser should (a) immediately give written notice to the seller; and that in said notice he should (b) state where

in said machine failed to do the work for which it was intended. These were conditions precedent, to be performed by the appellee, before he could, as against the appellant, insist upon a rescission of said contract. The allegations of said cross-complaint, so far as they relate to the abovementioned provisions, are:

"That as soon as this cross-complainant discovered the fact that said tractor did not perform successfully the work for which it was designed, he notified the said cross-defendant."

It is not alleged that the notice so given was in writing, as required by said contract, nor is it alleged that in and by said notice the appellant was told or informed as to the particular defects, or ways, or manner, in which said machine failed to do the work for which it was intended. For aught that appears in the pleading the appellee may have simply sent verbal notice to the appellant, giving to it information as to only one of the many alleged defects now by it complained of, and saying nothing as to any other defect, and giving to appellant no chance whatever to remedy any of them. The presumption is, under the allegations of said pleading, that said notice was not in writing. Lamb v. Donovan, 19 Ind. 40; Percifield v. Black, 132 Ind. 384, 31 N. E. 955; Horner v. McConnell, 158 Ind. 280, 63 N. E. 472; Perkins, etc., Co. v. Yeoman, 23 Ind. App. 483, 55 N. E. 782. However, the appellant in this case disregarded the noncompliance of the appellee in the matter of the form in which said notice should have been given, and by one of its agents responded thereto and attempted to adjust said machines, at least in some particular, and it is therefore now estopped to insist that said notice was insufficient, as to its form. The authorities cited in the principal opinion fully sustain this conclusion.

will be remembered that the pleading does not allege that appellant was thereby fully informed as to each and all the said defects complained of; there is no allegation that appellant was given information as to any particular defect. Had said cross-complainant alleged that "he had fully informed defendant of said defects," then and in that event he would have stated a "conclusion," and a "motion to make more specific" would have been proper, but, as the pleading stands, it is not subject to such motion, because here there is an entire absence of a necessary allegation, and the pleading is therefore fatally defective.

It will also be noted that the said contract of sale provided that:

"If the machine cannot be made to work

well, the purchaser shall immediately return it to said seller, and the price shall be refunded, which shall constitute a settlement in full of the transaction." (Our italics.)

The allegation of said pleading, as to said condition, is: "This cross-complainant tendered back to said cross-defendant, Maxwell Implement Company, said tractor." By the said contract of sale the purchaser, under the conditions specified, was given the right, not to tender back said machine to appellant, but to return said machine to appellant-to take the said property which he had purchased back to the place of business of appellant and there turn over, or at least offer to turn over, to appellant the possession of the same. The return of the property, as provided for, was also a condition precedent to be performed by the appellee. The appellant, in the pleading under consideraton, has tried, it would seem, to frame his pleading under the rule of the common law. Under this rule it was necessary, in pleading the performance of conditions precedent, for the pleader to aver what he had done in the way of performing each of such conditions; or, if such condition had not been by him performed, then he was required to state fully why he had not performed the same, so that the court might be able to say whether such performance had been waived, or been excused. Tested by the rules of the common law the pleading under consideration is fatally defective, and it has been held, and seems to be the settled law of this state, that if a party attempts to state the facts constituting performance of a condition, or conditions precedent, he must state such facts with the particularity and strictness required by the rules of the common law, and the statute cannot aid the pleading. Watson's Revision of Works' Practice, § 362, and authorities cited. The questions presented 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

DAVIES v. KELLEY. (No. 18797.) *
March 10, 1925.)

(Supreme Court of Ohio.

demurrer to this cross-complaint, it held as
a matter of law that if the appellee should
establish the facts in said pleading alleged,
as therein alleged, he would be entitled to
judgment. This was error. Bowen v. Wood-
field, 33 Ind. App. 687, 72 N. E. 162; Wayne,
etc., Ass'n v. Beckner, 191 Ind. 664, 134 N. E..
273; Louisville, etc., Ry. Co. v. Widman, 10
Ind. App. 92, 37 N. E. 554; U. S. Express
Co. v. Harris, 51 Ind. 127.

It is also urged that the court erred in overruling the demurrer to the first paragraph of answer of appellee. A reading of this paragraph discloses that it is laden with the same infirmities as the said cross-complaint. The demurrer thereto should have

been sustained.

It is next urged that the court erred in overruling the demurrer of appellant to the second paragraph of answer of the appellee.

This paragraph of answer, pleaded in bar of the suit upon said promissory note, admits the execution of said note, the sale of said tractor, etc., and then alleges that:

that

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"Differences arose between said plaintiff and this defendant after the delivery and attempt to operate said tractor as to whether the same complied with said warranty; that plaintiff and this defendant agreed to compromise and settle their said differences and by the terms of said agreement and compromise the said plaintiff agreed to take back said farm tractor and to furnish in its place and stead a farm tractor commonly known and designated as a Moline tractor, and said plaintiff, in consideration of the right of furnishing said Moline tractor, and to settle the difference between plaintiff and defendant, was to keep the cash and Liberty bond as well as said note, which defendant agreed to pay according to the tenor thereof; that said defendant also, in consideration of the said plaintiff furnishing unto the said defendant the said Moline tractor, agreed to pay a further and additional sum to plaintiff in an amount not to exceed $200."

It is then alleged that the appellant had failed to furnish said Moline tractor, as it had agreed to do.

If appellant had failed to keep its agreement to furnish such other tractor, as alleged, this might become the foundation for an action for damages, but the averments of the said paragraph of answer under consideration fall far short of stating facts sufficient to bar the cause of action stated in appellant's complaint. The demurrer to this paragraph of answer should have been sustained. In my opinion this cause should be reversed, with directions to the trial court to sustain appellant's motion for a new trial, to sustain appellant's demurrer to the first and second paragraphs of appellee's answer, and to sustain the demurrer of appellant to the cross-complaint of appellee, with leave to appellee to amend his pleadings, if he shall so desire.

(Syllabus by the Court.)

Landlord and tenant 162-Landlord retaining possession of halls and approaches must exercise ordinary care to keep them in reasonably safe condition.

If the owner of a house leases a portion of it, to which access is had by way of halls, stairways or other approaches, to be used by such tenant in common with the owner or tenants of the other portions of the premises, and retains the possession and control of such halls, stairways or other approaches, it is his duty to exercise ordinary care to keep the same in a reasonably safe condition.

2. Landlord and tenant 162, 164(2)—Landlord liable for neglect to maintain porch and stairway in proper repair; duty extends to tenants, their employés, guests, and invitees.

Where a porch and stairway leading thereto are provided, maintained, and controlled by a landlord for the use of several tenants of his building, and are thus used, he is, in general, liable for any injuries arising from his neglect to keep the same in proper repair; such duty and liability extend not only to the tenant himself, but also to members of his family, employés, guests, and invitees.

Error to Court of Appeals, Cuyahoga County.

Action by Jean Joseph Davies, a minor, etc., against Zoa Kelley. Judgment for plaintiff was reversed by the Court of Appeals, Reversed. [By and plaintiff brings error. Editorial Staff.]

This case originated in the court of com. mon pleas of Cuyahoga county. The issue upon which the case was tried was made by the third amended petition, the answer, and reply. It was averred in substance that the defendants, Zoa Kelley and Patrick Kelley, owned, controlled, and managed a certain 2story apartment or tenement house located in the city of Cleveland, and that the several suites therein, being 20 in number, were leased to and occupied by various tenants; that said suites were so arranged as to have 10 separate and distinct suites on the first floor, and the same number on the second; that Jean Joseph Davies, a child two years of age, lived with his parents in one of the ground floor apartments; that one of the suites on the second floor was used and occupied by a Mrs. Weaver, and another suite, separate and apart therefrom, was used and occupied by a Mr. Niger and his family, both families being tenants of the defendants; that defendants provided and maintained for the use in common of said two families, their guests, and invitees, a stairway and porch extending across the rear of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.)

these two suites on the second floor, around, erected and maintained for the purpose of which porch and stairway had been con- accommodating several tenants occupying difstructed and maintained by the defendants, a ferent portions of the premises. railing, with spindles or spokes therein, which railing and spindles and spokes for at least 30 days prior to the date of the injury complained of had been in a dangerous, defective, and unsafe condition, in that many thereof were loose and some had become entirely detached, all of which the defendants knew or with the exercise of ordinary care ought to have known; and that the defendants at the time complained of retained control of said stairway, porch, and railing.

It is then averred that said child, upon leaving the apartment occupied by Mrs. Weaver, where he had been as a guest, leaned against the railing across the easterly end of said porch, which broke and gave way, precipitating him to the cement pavement below, causing serious and permanent injuries therein fully described, which injuries, it is averred resulted from the negligence of the defendants in permitting the porch and railing to be in such unsafe condition, and from their failure to keep the same in reasonable repair.

The defendant Zoa Kelley by answer admitted that she owned, controlled, and managed the apartment building referred to; that at the time in question plaintiff lived with his parents in a certain suite located on the ground floor of the apartment building; and that the other parties named, with their families, occupied several suites on the second floor as her tenants. All other averments of the petition were denied, followed by an averment that the injury resulted from plaintiff's own negligence.

[2] From the undisputed facts in the record it appears that the several apartments of a 20-suite apartment building owned by Mrs. Kelley were rented by her to various tenants without written lease, and upon an agreed rental, payable monthly; that although there was no express reservation by the landlord of control over, or responsibility for any portion of such premises, of of the stairs or porches appurtenant thereto, it is clear that the porch and stairway in question provided a rear exit for, and was used in common by the two tenants occupying adjoining second floor apartments; and that neither of the tenants occupying the two apartments, for which such porch and stairway furnished the means of rear ingress and egress, had or exercised control thereover, but that during their tenancy the owner, through her janitor, who had charge of such building, did care for such stairway and porch.

The fact is undisputed that the plaintiff, then two years of age, living in one of the first floor apartments of such building with his parents, while returning from a visit with Mrs. Weaver, a tenant of one of the two second floor apartments above referred to, fell from the porch and sustained injuries, which evidence in the record tends to show resulted from the defective condition of the railing on such porch.

The cases heretofore reported by this court, involving the duty of a landlord to a tenant and others rightfully upon leased premises, and his responsibility for failure to keep the same in proper repair, have had to do only The trial resulted in a verdict for the with instances where the tenant himself had plaintiff for a substantial amount, upon full possession and complete control over the which a judgment was rendered, which was property, as was the situation in the cases reversed by the Court of Appeals, upon the of Burdick v. Cheadle, 26 Ohio St. 393, 20 ground that the court of common pleas erred Am. Rep. 767, and Shindelbeck v. Moon, 32 in overruling the motion of the plaintiff in Ohio St. 264, 30 Am. Rep. 584, or where there error to arrest the case from the jury, and was an express reservation, as in Stackhouse render judgment for the defendant below at v. Close, 83 Ohio St. 339, 94 N. E. 746. In the close of the testimony for the plaintiff, none of those cases was the responsibility for and also in overruling said motion as renew-the condition of a portion of leased premises ed at the close of the trial; said court of com-used jointly by several tenants involved. As mon pleas also erred in overruling the mo- stated in the opinion in Burdick v. Cheadle, tion of said plaintiff in error, as defendant supra, at page 396: below, for a new trial.

Upon application of plaintiff in error, the record was ordered certified to this court for review and final determination.

Clark T. McConnell and William C. Blackmore, both of Cleveland, for plaintiff in er

ror.

T. J. Ross, of Cleveland, for defendant in

error.

MATTHIAS, J. The record in this case presents the question of the liability of a landlord for an injury resulting from the defective condition of a stairway and porch

"The duty here referred to does not arise upon the contract of lease, but is one which the law imposes upon the owners of property, and is expressed in the maxim, 'sic utere tuo ut alienum non lædas.'"

And in the further discussion it is stated: "This principle ordinarily applies only to persons in possession, and having control of the property, either as Owners or tenants. But in case a landlord undertakes with his tenant to keep the premises in repair, having thus reserved the control to the extent necessary for making repairs, his duty to the publie in relation to the property is not affected

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