47 Ind. App. 1 | Ind. Ct. App. | 1911
— Appellee brought an action of replevin for two horses, which he alleged had been unlawfully taken and were unlawfully detained by appellant. The complaint was in the ordinary form. Appellant filed an answer in general denial, and also an answer alleging that it was the owner of a chattel mortgage executed by appellee to secure certain promissory notes executed by appellee to appellant; that one of the notes was due and unpaid; that the horses described in the complaint were covered by the chattel mortgage referred to and filed as an exhibit in the answer; and that appellant had taken and held said horses under and by virtue of the chattel mortgage.
To this answer appellee filed a general denial, and also a special reply, in which he alleged that the chattel mortgage set up by way of answer was given to secure three notes of $400 each, given for the purchase price of a
The case was tried by the court without the intervention of a jury, and, upon request of appellee, the court made a special finding of facts and stated its conclusions of law thereon. The judgment of the trial court was in favor of appellee. A motion for a new trial was filed and overruled, and this ruling is assigned as error in this court. The causes assigned for a new trial are that the decision of the court is not sustained by sufficient evidence, and is contrary to law.
The special findings are too lengthy to be set out in full, so we shall refer to only so much thereof as is necessary to an understanding of the question presented by this appeal. The substance of the court’s findings, so far as material to the questions involved, is as follows: “That on July 16, 1906, appellee mortgaged to appellant the personal property described in the complaint, together with other personal property; that said mortgage was executed to secure the payment of three several notes of $400 each, which notes were given as evidence of the purchase price of said traction engine, and as a part of the same transaction appellant executed and delivered to said appellee a written warranty, which is set out in the findings; that said engine failed in many particulars to comply with said warranty, and appellant, after notice and proper tests, was unable to make it comply with said warranty; that said engine was worthless to appellee and wholly worthless for any purpose; that appellee, long before the filing of his complaint herein, offered to return said engine and all of its appurtenances to ap
"If, after giving notice as above provided, any part of the machinery cannot be made to fill the warranty, that part which fails shall be returned immediately by the undersigned to the place where it was received, with the option of the company either to furnish another machine, or part, in place of the machine, or part, so returned, which shall perform the work, or return the money and notes which shall have been received by the company for the same, and thereby rescind the contract to that extent, or the whole, as the case may be, and be released from any further liability herein. The failure of any separate machine, or any part thereof, shall not affect the contract or liability of the purchaser for any other separate machine, or for any parts of such machine as are not defective,”
In the ease of Smith v. Borden, supra, the Supreme Court said: “It may be conceded in this case that were it not for the offer to return the machine to the plaintiffs which the facts show the defendant made, and which he continues to make in his ansAver in question, the latter would be bad on demurrer, as the averments therein that the wheel is utterly
The judgment is reversed, with directions to sustain the motion for a new trial.