45 Ind. 268 | Ind. | 1873
Three errors áre properly assigned in this case:
1. Sustaining the plaintiffs’ demurrer to the second paragraph of the defendant’s answer.
2. Striking out part of the third and fourth paragraphs of the answer.
3. Overruling the defendant’s motion for a new trial.
The action was by the appellees against the appellant, on two promissory notes executed by the appellant to the appellees, and there was judgment in the common pleas in favor of. the plaintiffs. The second paragraph of the answer was as follows : “ And for further answer, defendant admits the making of the notes sued on, but says that they were given for a threshing machine sold by plaintiffs to defendant, and by them manufactured, which they warranted to be a good machine and capable of doing good work, when, in fact, it would not operate at all, and was utterly worthless, as plaintiffs well knew; wherefore defendant says the consideration for which said notes were given has wholly failed.”
No brief is filed for the appellees, and we are, therefore, without any information as to the ground on which the demurrer to this paragraph was sustained. If it is supposed that the paragraph should have alleged a return of the
The third paragraph of the answer, as it was before any part of it was stricken out, was as follows: “ And for further answer and by way of counter-claim, defendant admits the making of the notes sued upon, but says that at the time of making the same, and as the only consideration therefor, defendant purchased of one John S. Provines, who was agent for the plaintiffs for the sale of threshing machines manufactured by plaintiffs, and did then and there sell said defendant one threshing machine belonging to plaintiffs, which was by plaintiffs’ agent, Provines, warranted, recommended, and represented to be a machine of superior quality, good and substantial manufacture and workmanship, in complete running order in every particular, capable of doing an unusually large quantity of threshing per day, in a superior manner; which warranty'was the inducement to the defendant to purchase. The defendant further avers, that said machine was, in point of fact, a machine of very inferior quality, unsuitable in all its parts, not in running order, and could not be made to .do more than one-half the work
The portion of this paragraph which was stricken out is that part beginning with the word “ and,” in small capitals, and ending with the word “ dollars,” also in small capitals. Where a motion to strike out part of a pleading has been made and overruled, the action of the court will not, except under special circumstances, be cause of reversal. Evidence in support of allegations of surplus matter should be excluded by the court, where such allegations are not stricken
The fourth paragraph of the answer, entire, was as follows: “ And for further answer, defendant says, that he made the notes sued upon, but says that plaintiffs were, at the commencement of this suit, indebted to defendant in this, to wit: That on the 26th day of July, 1869, he purchased of plaintiffs one other threshing machine, for which he paid plaintiffs in full, receiving a guaranty that said machine was a good and substantial machine, of plaintiffs’ own manufacture; that it was perfect in all its parts; that it would thresh two thousand bushels of wheat per day; that it would thresh clean; that it would not waste any grain ; that it would not be liable to get out of repair ; that the spikes in the cylinder were securely fastened, so that said machine could be operated with speed and safety; and defendant says plaintiffs are indebted to him for breaches of said warranty, in this, that said machinewas imperfectly constructed, and would not perform more than one-fourth the labor it was warranted to perform; that what work it could be made to perform was of an inferior quality; that it did waste a large percentage of grain; that the cylinder was defective; that it would not operate at all; that for the defects aforementioned, defendant says he is damaged in the sum of four hundred dollars ; and, further, that by reason of the defects aforementioned, said defendant was put to great expense for repairs, to wit, one hundred dollars; and, further, by reason of said defects defendant was damaged in the loss of time; that the hands necessary to operate the machine had to lie idle while said
The portion of this paragraph stricken out by the court is that part beginning with the word “ and,” in small capitals, and ending with the word “ dollars,” marked in the same way.
If we are right in our ruling upon the question relating to the action of the court in striking out part of the third paragraph of the answer, this action of the court was also erroneous. The part stricken out contains material averments relating to the breach of warranty and the extent of the injury resulting therefrom.
We have now disposed of the questions concerning the action of the court relating to the pleadings ; and as the conclusions at which we have arrived will require a reversal of the judgment, and result in a new trial, we deem it unnecessary to enter upon an examination of the questions arising under the remaining assignments of errors.
The judgment is reversed, with costs, and the cause remanded, with instructions to overrule the demurrer to the second paragraph, and the motion to strike out the parts of the third and fourth paragraphs of the answer, and for further proceedings.