54 Ind. App. 361 | Ind. | 1913
Appellant, the Edwards Manufacturing Company, manufacturer of metal shingles, commenced this ac
The errors assigned for reversal and argued are: Overruling the demurrers to the first and second paragraphs of the answer, and the refusal to grant a new trial.
The first paragraph of the answer was drawn upon the theory that the shingles were sold to appellee on an implied warranty that they were reasonably fit and suitable for the particular purpose for which they were to be used, that is, for the construction of a roof of a particular kind, and that the shingles proved worthless, and appellee was damaged more than their cost. The second paragraph is substantially the same as the first except that it relies on the execution of a written guaranty.
“Order No......Date Nov. 8, 1906. The Edwards Manufacturing Company. Ship to Thos. H. Stoops at Connersville, Ind. (description of shingles and quality) Ship by Big 4. When? Dec. 1, but wait notification. Thomas H. Stoops.”
This writing is in itself an incomplete and uncertain memorandum or order. But when it is coupled with the allegation that the order was marked “wait notification,” with the intent and purpose to make it conditional on the giving by appellant of an express warranty, and with appellee’s letter to appellant relating to the order and asking for an express warranty of the goods referred to therein for the particular purpose for which they were intended, and appel
The cause seems to have been fairly tried and a proper result reached.
Judgment affirmed.
Note.—Reported in 102 N. E. 980. See, also, under (1) 35 Cyc. 402; (2) 35 Cyc. 435; (3) 35 Cyc. 446-450; (4) 35 Cyc. 372; (5) 17 Cyc. 518; (C) 3 Cyc. 348; (8) 38 Cyc. 1782; (9) 38 Cyc. 1693; (12) 35 Cyc. 472, 474. As to warranty of quality implied on sale of goods, see 55 Am. Dec. 328; 102 Am. St. 607. As to implied warranty of fitness of property bought for special purpose, see 22 L. R. A. 187; 15 L. R. A. (N. S.) 868; 31 L. R. A. (N. S.) 783; 34 L. R. A. (N. S.) 737.