61 Ind. App. 19 | Ind. Ct. App. | 1916
This is a suit brought by appellee against the appellants, The Aultman & Taylor Machinery Company, and the Huntington County Bank, to annul a written order for the purchase of a traction engine and to cancel four promissory notes and have returned to him $100 in cash paid by him on the order, on the ground that the order was procured by the fraud of appellant, The Aultman & Taylor Machinery Company, hereafter referred to as the appellant.
The complaint was in one paragraph and was answered by general denial. The only error assigned, and relied on for reversal of the judgment rendered in appellee’s favor is that the court erred in overruling appellants’ motion for a new trial, the grounds of which are, (1) that the decision of the court is not sustained by sufficient evidence and (2) is contrary to law.
Omitting formal parts, the complaint in substance alleges that in October, 1912, appellee represented to appellant that he desired to purchase a steam traction engine for the purpose of drawing wagons loaded with crushed stone; that appellant by its agent represented to appellee that it had an engine suitable for that purpose, and thereupon appellee entered into an agreement in writing by the terms of which he agreed to purchase the engine for $500; that as a part of said agreement appellant warranted the engine to be made of good materials and capable of doing as much work as any engine of like size and
Appellee also testified that he had had twenty-five years of experience in using engines and other machinery and was an expert, and that he would have discovered anything wrong with the engine if he had gotten under it; that he went to examine the engine for himself and to rely on his own experience and fitness to judge of the engine. The evidence also shows without dispute that appellee learned it was a Reeves engine not made by appellant, that it had been in use about twelve years and that Mr. Gorham, in whose possession he found it, had owned it about three years and was trading it for a larger engine; that appellee looked at the leak under the engine twice. Appellee also testified that appellant priced the engine at $550 and when he returned he told the agent he would not put that much in a second-hand engine; that he “didn’t know anything about the flues”, they were burning coal and he “couldn’t see into the inside of the box”, but if anything was wrong with the stay bolt he “could put that in”; that they finally agreed on $500, and the agent wrote, and he signed, an order to buy the engine at that price; that he relied on the
The ease is wholly unlike many others where a person in some superior position Or possessing some peculiar knowledge, has induced another to act, who depended upon, and had a right to depend upon, the statements so made, and was thereby induced to act while relying on such statements rather than upon his own judgment. In this case the evidence does not warrant the inference that appellee relied upon the statements made to him and was thereby deceived. True he states that he relied upon them, but he also states that he relied upon his own experience and judgment. The facts support the latter and do not tend to support his mere conclusion to the contrary. The only inference that may reasonably be drawn from the evidence presented by the record, is that appellee was a man fully capable of judging for himself, and that after examining the engine, without any interference or hindrance on the part of appellant, he acted on his own deliberate judgment in purchasing the engine at a price agreed upon about which there is no dispute. The judg
Note. — Reported in 111 N. E. 446. As to the doctrine that fraud is never presumed, see 18 Am. St. 560. See. also, under (1) 3 Cyc 357; (2) 35 Cyc 66; (3) 20 Cyc 120, 122.