37 Ind. App. 223 | Ind. Ct. App. | 1906
Appellant instituted this action against appellee to collect the contract price for a wind pumping outfit. The cause was tried upon an amended complaint in three paragraphs. The first and second paragraphs are based upon a written order made part of each paragraph by exhibit. The order is as follows:
“Poneto, Indiana, May 23, 1902.
W. R. Allyn.
Ship to Frank Burns at Poneto.
How ship. Freight. When. At once.
Terms. Cash on sixty days trial.
1 25 ft. Tower, steel.
1 Acme Regulator.
*225 1 Dewey Eountain.
30 feet, 1 inch Pipe.
20 feet, 1% inch pipe.
Eor Eorce Pump and fitting Ext.
$75.00
W. E. Burns. 6.15
W. R. Allyn.
B. Thompson.”
The first paragraph alleges the delivery on the premises of appellee, on June 12, 1902, of all the material called for by the order, and out of said material appellant constructed for appellee a wind pumping outfit; that appellee took and retained possession of the same, used and accepted the same, after giving it sixty days trial, but has refused to pay therefor; that the contract price for said pump is past due and wholly unpaid, and judgment is demanded.
The second paragraph alleges that appellee, in writing, ordered from appellant certain materials, out of which appellant was to erect for appellee on his premises a wind pump, on sixty days’ trial, and for which appellee agreed to pay appellant $81.15; that, on June 12, 1902, pursuant to such order, appellant delivered on the premises of appellee the goods so orderd, and erected thereon a wind pump; that appellee took possession and accepted the same, after giving it sixty days trial, and thereafter used the same, for the purpose of pumping water for his live stock, until December, 1902, “when he, by himself and through his agents, pulled out the bolts that supported one side of the mill and let the same fall down, and thereby broke said mill to pieces and rendered it worthless.” Said paragraphs also aver the amount due, and appellee’s failure and refusal to pay the same.
The third paragraph counts upon an indebtedness due appellant from appellee for goods and merchandise sold and delivered by appellant to appellee, to be paid for in cash on sixty days’ trial, and upon the fact that appellee'
Appellee answered this complaint in two paragraphs. The first, a general denial, and the second alleges that the contract mentioned in the complaint was a parol contract; that by the terms of the contract appellant agreed to erect a wind pump on the premises of appellee out of the material mentioned in the written order filed with the complaint ; that after sixty days’ trial of said pumping outfit — ■ the same being satisfactory to appellee — he was to pay for the same; that by said agreement appellant was to erect a tower twenty-five feet high, also a fourteen-barrel tank; that the derrick should be good and substantial; that a good pump should be furnished, one with sufficient capacity to furnish water for the stock of appellee; that appellee knew and was shown the place where the pump was to be erected; that the water-pipe was to be placed under ground; that the pumping outfit was to be in all respects equipped and work as well as a pump owned by one Stahl, which was known both to appellant and appellee at the time the agreement was made; that appellee had no knowledge of wind pumps; that appellant, in violation of his agreement, (1) erected a tower only twenty-one feet high, (2) erected a tank the capacity of which was only eleven barrels, (-3) erected a derrick which was slender, inferior, unsubstantial and worthless, (I) furnished a pump which was inferior and worthless, (5) furnished a pump which was not of sufficient capacity to supply water for the stock of appellee, (6) laid the water-pipe above ground. Appellee further alleges that he gave the pumping outfit an honest and fair trial, and was not satisfied therewith, and never accepted the same; that on August 15, 1902, he notified appellant in writing and verbally that he would not accept the pumping outfit, that it was not satisfactory, and ordered him to remove the same from his premises, as he had
The issues thus formed were submitted to a jury for trial, resulting in a general verdict for appellee. Appellant thereupon filed a motion for a new trial, which the court overruled, and judgment was rendered in favor of appellee for costs.
Appellant prosecutes this appeal to this court, and assigns as error the overruling of his motion for a new trial.
The court on its own motion, by instruction number one, told the jury that “if the defendant, after giving notice that he would not accept the windmill, still continued to use the same, with full knowledge of its defects and imperfections, if it was defective or imperfect, such use would amount to an acceptance. However, you are 'to determine from all the evidence whether the defendant did or did not use said windmill after he served notice that he would not accept the same.” Also by instructions five and six, tendered by appellant and given by the court, the jury were instructed that if they found from the evidence that after the expiration of sixty days’ trial appellee continued to use the windmill’ and pump in watering his live stock, with knowledge of the imperfections of the mill and pump, such continued use of the same “would constitute an unequivocal act of acceptance thereof, and he would be bound to pay for the same the amount of the contract price agreed upon,” that an acceptance by the buyer was absolutely binding and conclusive upon him, and that the continued use of the mill and pump “after the expiration of the sixty days provided for in the contract would constitute an acceptance of the property, which no mere words could qualify.”
After a careful consideration of the record in the case at bar we find no available error. Judgment affirmed.