81 Ind. App. 460 | Ind. Ct. App. | 1923
June 24, 1912, appellee executed a series of six non-negotiable promissory notes payable to the Geiser Manufacturing Company, hereafter referred to as the Geiser Company, identical in form except as to the amount and date of payment. All these notes were secured by a chattel mortgage on certain threshing machinery and were assigned to appellant. Two of these notes were paid by sale of the mortgaged property, and this is an action by appellant on the other four notes. The complaint is in four paragraphs, each in the usual form of an action upon a promissory note.
The assignment of error challenges the action of the court in overruling a demurrer to the sixth and seventh paragraphs of answer, in overruling a demurrer to the second paragraph of cross-complaint and in overruling appellant’s motion for a new trial.
The sixth paragraph of answer admits the execution of the notes and alleges that the consideration for which they were given was the purchase price of a threshing machine; that the payment of these notes was secured by a mortgage upon said machinery; that on July 14, 1914, appellant took possession of the property so described in such mortgage and converted the same to its own use and that the value of the property so converted was in excess of the amount due on the notes.
The seventh paragraph of answer admits the execution of the notes and alleges, in substance, that they were given as part payment for certain threshing machinery which appellee purchased from the Geiser Company ; that such machinery was purchased on a written order wherein the Geiser Company warranted the same, and setting out the part of the contract wherein the seller warranted the machine in certain particulars and agreed, in case it could not be made to fill the warranty, that appellee should, on demand, return the machinery, and the Geiser Company, at its option, should furnish appellee another machine on the same terms of warranty or return the money and notes given for the machinery to the amount of the defective machinery
The amended second paragraph of cross-complaint, hereafter referred to as the cross-complaint alleges, in substance, the same facts as are set out in the seventh paragraph of answer, and, in addition thereto, alleged that, for this threshing machine, appellee executed the notes mentioned in the complaint and two other notes which last two he had paid; that he also, in part payment for such machinery, delivered to the Geiser Company certain other machinery of the agreed and reasonable value of $600. That appellee performed all things required of him by the contract of warranty, and asking judgment for the amount paid on said notes and for the value of the machinery which he turned over as part payment on the machine for which the notes were given and which appellant had converted.
There was no error in overruling the demurrer to the sixth and seventh paragraphs of answer. Hartman v. Ringgenberg (1889), 119 Ind. 72; Dill v. O’Ferrell (1873), 45 Ind. 268; Ohio, etc., Co. v. Hensel (1894), 9 Ind. App. 328.
But, according to the allegations of the cross-complaint, appellant, acting under, and pursuant to the contract of warranty executed by the Geiser Company, demanded possession of the machinery which had been sold to appellee by the Geiser Company and appellee delivered the possession of such property to appellant pursuant to such agreement of warranty and not otherwise. As heretofor stated, this agreement provided that if the machine could not be made to fill the warranty, appellee should, when requested, return it, and the company, at its option, should furnish appellee another machine on the same terms of warranty, or return the money and notes to the amount represented by the machine returned. As was said in Burt v. Bowles (1879), 69 Ind. 1: “It is a familiar principle that money paid, or personal property delivered, or real estate conveyed, under a void contract or a contract which cannot be enforced, may be recovered back or
We now pass to the contention of appellant that the verdict is not sustained by the evidence. We held the sixth paragraph of answer good on the theory that appellant had taken possession of mortgaged property which was of a value equal to or greater than the amount then due on the notes which it was given to secure. Appellant took possession of the mortgaged property and claims to have purchased the same at a sale held under the provisions of the mortgage. Appellee contends that the sale to appellant was void because of a defective notice. There was no evidence as to the value of the property at the
The undisputed facts are that on May 13, 1912, the Geiser Company sold certain threshing machinery to appellee to be delivered about June 15, 1912, and, in writing, warranted the same to be well built, and, all things being equal, to do as good or better work than any other machine of same size and capacity, and agreed, in case appellee, within a fixed period, should notify said company of a failure of the machinery to fill the warranty, and if the company was not able to make the machine fill the warranty, appellee, on request, was to return it to the place where received and the Geiser Company had the option of furnishing appellee another machine on the same terms of warranty or returning to him money and notes to the amount represented by the machine or part thereof returned. In payment of this machinery, appellee turned over to the Geiser Com
Mr. Gough testified that on July 14, 1914, he went with Mr. Barlet, a former agent of appellant, out to the place where appellee was threshing wheat; they went for the purpose of making a demand on appellee for the machinery under the mortgage; Mr. Barlet had the mortgage with him and made the demand; after a conversation between Barlet and appellee, the former, before leaving the place where they were threshing, prepared some notices and posted one on the separator or at the barn on the farm where appellee was threshing, and posted five of such notices on the public highways in the township where the property was located.
Mr. Barlet testified that on July 14, 1914, he was employed by appellant and instructed to make a demand, under the chattel mortgage, on appellee for the machinery in question; that, as such agent, he made such demand and was given possession of the machinery ; part of the attachments belonging to the machinery was not there, but appellee promised to have such at
Appellee testified that Mr. Barlet came to see him a few days before the day on which he made demand for the machinery and that appellee on that day made complaint to Barlet about the machinery, told him about the warranty, and that he would not pay another dollar unless they made the machinery come up to the warranty. Barlet, at that time, told appellee that he knew nothing about the warranty, that he had never seen it. Barlet did not say anything that day about returning the machinery. About two days later, Barlet did demand the machine. The witness repeated the conversation relative to the provisions of the warranty and said it was after that that Barlet demanded the machinery.
Appellee made no denial of the testimony of Gough
If there was any evidence to justify an inference that the possession of the property was taken under the warranty, it would be our duty to sustain the verdiet, but when there is no evidence to sustain such an inference, and when the verdict is against all the positive evidence, it is our duty to so hold. Jurors must not be permitted to render verdicts through prejudice or otherwise when there is no evidence to sustain their verdict, and when they do, the duty of the court is clear. It is also to be remembered that the burden of proving the allegations of the special answers and cross-complaint was on appellee.
Instruction No. 1 tendered by appellant contained a correct statement of the law applicable to the cause and, in the absence of any other instruction as clearly and fully covering the subject-matter, should have been given.
Appellant also contends that the court erred in giving on its own motion instructions Nos. 12 and 14. The court in No. 12, after instructing the jury that if it found appellant was the holder of the mortgage on thé threshing machine, told the jury that if it found appellant, “as holder of such mortgage, attempted to sell such mortgaged property without a decree of foreclosure in court, but under a power of sale contained in the mortgage, and plaintiff purchased such property at such sale, the sale must be fairly and openly made in strict compliance with the powers contained in such mortgage and the price paid must not be clearly, grossly disproportioned to the value of the property, otherwise the sale will be void.” There was no evidence that the sale was not fairly and openly made or that the price paid was disproportionate to the value
Appellant’s objections to the admission of three letters written by appellee to appellant, dated September 12, 1913, April 29, 1914, and June 10, 1915, should have been sustained.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings consistent with this opinion.