No. 2,500 | Ind. Ct. App. | Nov 30, 1898
Lead Opinion
This is an action in replevin brought by appellees against appellant to recover possession of a traction engine, a separator, and a straw stacker. This is the second appeal. The former appeal and decision is reported as Aultman & Co. v. Richardson, 10 Ind. App. 413" court="Ind. Ct. App." date_filed="1894-10-30" href="https://app.midpage.ai/document/aultman--co-v-richardson-7060864?utm_source=webapp" opinion_id="7060864">10 Ind. App. 413. After the reversal, an amended complaint was filed in three paragraphs, not differing essentially from the original complaint. Appellants’ counsel do not discuss the sufficiency of the complaint, and we do not deem it necessary to set out either paragraph. The defendant answered in two paragraphs: (1) The general denial; (2) that on the — day of-, 1891, plaintiffs ordered of defendant, by a written order, the property described in the complaint, which was purchased under and subject to the written and printed warranty, and under the terms and conditions of the written order, a copy of which is set out in this paragraph of answer. It further avers that, “according to the conditions provided in the warranty, if inside of five days from the time of its first use, the machinery should fail to fulfill said warranty, that written notice must be given immediately to C. Aultman & Co. by registered letter, and written notice also to the local agent from whom the same was purchased, stating wherein it failed to fulfill the warranty. * ' * * And, if the machinery could not be made to fill the warranty, that the one which failed, either separator or engine, should be returned to the place where received, and another furnished, which should perform the work, or the
The fourth, fifth, and sixth specifications of the assignment of error only are discussed. They allege, respectively, that the court erred in overruling appellant’s motion for judgment in its favor on the answers of the jury to the interrogatories, in sustaining plaintiffs’ motion for judgment on the verdict, and in overruling appellant’s motion for a new trial. Upon the former appeal the judgment of the lower court was reversed because there was no evidence of the damages on account of the breach of warranty. Counsel for appellant claim that the special verdict shows no finding of any damages for breach of warranty, and that the absence of such finding being equivalent to a finding against the plaintiffs upon the question, judgment should have been rendered in its favor. It is conceded by counsel for appellees that no one interrogatory and answer thereto finds the amount of damages on account of a breach of warranty, but they claim that the special verdict taken as a whole conclusively warrants that there was a breach of warranty. The position of appellees’ learned counsel is, that the debt which the mortgage was given to secure was really not in existence; that at the time this action was instituted it had been wiped out by the breach of warranty; that, the mortgage being only an incident to the debt, all rights under it ceased when the debt became extinguished.
In the decision of this case upon the former appeal, Lotz, J., in speaking for the court, said: “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
The facts found upon this appeal must take the place of the evidence before the court in the former. We have carefully read the 168 interrogatories and answers thereto constituting the special verdict. There are findings showing the machine to be. defective. There is no finding of the value of the engine at the time it was sold to appellees, nor is there any finding as to its value had it been as warranted. The jury, in answer to an interrogatory as to the value of the engine in question for furnishing steam power for threshing, sawing, or ploughing, or for any other purpose, where steam was required on the 24th day of June, 1891, stated that there was no evidence. The verdict not showing damages for breach of warranty, the judgment must be reversed.
Counsel for appellant further contend that the court should have rendered judgment in favor of appellant for the reason that the verdict found that the engine, separator, and straw stacker were not unlawfully taken or detained from the appellees. These findings, however, were merely conclusions of law, and are therefore to be disregarded.
They further contend that the judgment should not have been rendered for appellees because: (1) As found by the verdict the warranty provided that, if the machinery could not be made to fill the warranty, “that part which failed, be it separator or engine, should be returned by appellees to the place where received, and another furnished, which would perform the work or the money and notes given for the same returned, and no further claim made on C. Ault
We think it is a sufficient answer to this claim, and the separate grounds upon which it is made, that the special verdict also found that, within five days from the first use of the engine, they reported by letter its defects to C. Aultman & Co., at Canton, Ohio; that said letter was received, and that the agent of appellant for the state of Indiana called upon appellees; was told of and saw the defects, and promised and agreed that, if appellees would execute the notes and mortgage in question, the company would send some one to remedy the defect; that the notes and
Concurrence Opinion
Concurring Opinion.
The conclusion reached by the majority of the court in reversing this cause meets with my approval, but I am strongly of the opinion that the lower court should, in this cause, be directed to sustain the motion of appellant for judgment upon the special verdict. The special verdict fails to show that appellee was in any way damaged by the alleged breach of warranty, and upon this ground it is held that the verdict is insufficient to sustain a judgment for any amount in favor of appellees, and for the same reason I think the motion for judgment upon the special verdict in favor of appellant ought to have been sustained. It seems to me that the correct practice in all cases where a special verdict is returned would insure to one party or to the other to the ac