10 Ind. App. 413 | Ind. Ct. App. | 1894
This action was brought by the appellees against the appellant and Amos G. Allen and Mary Chapman, to recover the possession of a traction engine, a separator and straw stacker, of which the appellees claimed to be the owners. Allen and Chapman disclaimed any interest in the property. The appellant filed an answer in denial. Appellees had a verdict in which all the property in controversy was found to be of the value of $500. The only questions presented for our consideration arise on'the motion for a new trial. It appears from the evidence that the appellant sold to appellees a traction engine for $1,350. As part payment therefor, the appellant took an old engine, at the agreed price of $400, and the appellees executed their notes for the
On the trial of the cause, the appellant gave in evidence the chattel mortgage, and also evidence of the breach of the condition, for the purpose of establishing that it was rightfully in possession.
The appellees in rebuttal gave in evidence the written warranty and other evidence which tended to show a breach of the warranty in that the engine would not do good work, and that the materials were not good, and of
The appellant, with much'earnestness, insists that it was error to admit this evidence. It is contended that a breach of warranty is a matter of counterclaim growing out of contract, and can not be interposed in an action in replevin, an action in tort; that in no case can it be made available except it be specially pleaded.
In the recent well considered case of Aultman & Co. v. Forgey, 10 Ind. App. 397, this court decided adversely to the contentions of appellant. A breach of warranty may be used as a cause for an original action, a counterclaim, or as a matter of defense at' the option of the warrantee. Brower v. Nellis, 6 Ind. App. 323; Springfield Engine & Thresher Co. v. Kennedy, 7 Ind. App. 502.
Whenever a breach of warranty is used as a matter of defense it is by way of recoupment; that is, it cuts back and destroys the plaintiff’s right to recover. If, as a matter of fact, at the time the appellant took possession of the property there was a breach of the warranty, and there was as much due the appellees on account of such breach as there was due the appellant on account of the notes and mortgage, then the appellant would have no right to the possession of the property. It is true that this case differs somewhat from the case of Aultman & Co. v. Forgey, supra. There the breach of warranty was interposed as a matter of defense; here it is interposed in rebuttal to defeat a defense. The principle, however, is the same.
The defense sought to be established by the mortgage, and the evidence of the breach of its condition, was that
There was evidence tending to prove a breach of the warranty in that the engine would not do good work, and that it was not composed of good materials, but there is no evidence of the extent of the damages on account of such breach. There is evidence to the effect that the engine was of the value of $200 at the time the appellant took possession of it, but there is no evidence of its value at the time it was sold to appellees, nor is there any evidence as to its value had it been as warranted; nor was there any evidence of fraud. As there was no evidence of the damage on account of the breach of warranty, appellant’s right to possession under the mortgage was not overthrown by the evidence in rebuttal, and the verdict is not sustained by the evidence.
The case seems to have been tried in the court below upon the theory that the breach of the warranty constituted a want or failure of consideration for the mortgage, and that the mortgage was, therefore, void. The sale of the engine, with the accompanying warranty, the execution of the notes and mortgages, although done at different times, constituted one entire transaction. When the notes and mortgages were executed, the appellees received what they contracted for — the engine and the warranty. The engine was certainly of some value then. One of the appellees, in his affidavit to the complaint, fixed its value at $600, and on the trial he swore it was of the value of $200, and the jury found it was of the value of $200. There was then no want of consideration. The consideration may have been inadequate, but
Judgment reversed, at costs of appellees, with instructions to sustain the motion for a new trial.