98 Ind. 92 | Ind. | 1884
This was a suit by the appellants, partners under the firm name of “ Fairbanks, Morse & Co.,” against the appellee, Meyers. The action was founded upon a written instrument alleged to have been executed to the appellants, partners as aforesaid, by the appellee, Meyers, and was brought to recover damages for appellee’s alleged breaches of the terms of such instrument. The appellee, Meyers, alleged, by way of counter-claim, that the appellants had failed on their part to comply with the terms of such written instrument, whereby he had sustained damages for which he demanded judgment. Issues were joined upon the complaint and cross complaint, and were tried by the court; and, at the request of the parties, the court made a special finding of facts, and thereon stated its conclusions of law in favor of the appellee. Over the appellants’ exceptions to the court’s conclusions of law, and sundry motions by them made, the court rendered judgment against them in favor of the appellee.
Before considering the errors complained of in this court it is necessary to a proper understanding of the questions presented for decision, that we should first state the facts alleged by the appellants, in* their complaint, as constituting their cause of action against the appellee.
. “ Chicago, 111., Sept. 14th, 1880.
“Messrs. Fairbanks, Morse & Co., Chicago :
“ Dear Sirs — You eau send me to Rockford, 111., four 600-pound platform scales on wheels and two 400-pouuds, this being the first of (100) one hundred platform scales I take between this date and the 1st of April, 1881, under the following conditions: I agree to order and pay for, in the time specified, if, during the time, I have my health sufficiently to woi’k, but if I should not be able to work all of the time specified, then I am to have an extension of time to take up the balance of scales, as long a period as was disabled. In case of death, you are to absolve me or my heirs from this arrangement.
“ When ordering scales, will send you money for each lot, $17, 600-lbs.; $13.50, 400-lbs. I am to have nickle-plated beams, 50 cents. You are to prepare 50 nickled for my trade. You are to deliver these scales, 600-lbs., on board of cars, free of cartage, at Chicago, for seventeen and dollars, nickle-plated, and furnish me, when required, 200 pound weights for portable scales at 25 cent each. I agree to handle ‘Fairbanks’ scales’ exclusively.
(Signed) “D. B. Meyers.”
The appellants alleged that, in consideration of the mutual agreements and covenants therein contained, they of the one part,and the appellee of the other, so made and entered into the same wwitten contract, the appellee signing, and the appellants at the same time accepting and adopting, the same as
The appellee’s answer was in four paragraphs, of which the first was a general denial, the second stated special matter as a defence, and the third and fourth paragraphs were each a counter-claim. The appellants’ demurrers to the sec
In the second paragraph of his answer, the appellee alleged that, pursuant to the contract in suit and in performance thereof, he ordered the whole of said property, and the appellants delivered to him fifty of said scales, beams and weights, all of which he paid for; that, at all times, he had been and still was ready and willing to pay for and receive the balance of said property, but that the appellants had refused, and still refused to deliver such property to the appellee.
In the third paragraph, by way of counter-claim, the appellee said that, on September 14th, 1880, he entered into the contract with the appellants, described in their complaint, he by signing the same, and the appellants by accepting and adopting it; that said contract was executed in duplicate, one signed by appellee and the other signed by the appellants, and the two were precisely alike except as to the signatures thereto; that the one signed by appellee was delivered to the appellants, and the one they signed was at the same time delivered to appellee, in execution of their mutual contract and agreement, and as one contract between the parties; that appellee could not give a copy of the contract delivered to him, for the reason that it was lost, but it was precisely like the copy set out in the complaint, except as to the signature; that the appellee ordered the scales and other property mentioned, and had fully performed the contract on his part; that the appellants delivered, pursuant to and in performance of the contract, forty of said scales which appellee paid for; that the appellants without cause, on March 9th, 1881, and since that time, wholly refused to deliver to the appellee the balance of the property, in said contract mentioned, and that they well knew that appellee was at that time, and had been since, ready and willing to receive and pay for said property; that on said day, and at divers times since, the appellants notified appellee that they would not deliver to him said property,, pursuant to said contract; that the said scales, beams and
The fourth paragraph is also a counter-claim, and the only ■substantial difference between its allegations and those of the third paragraph is, that there is no averment in the fourth paragraph that the contract between the parties was executed in duplicate, or intended so to be executed. In lieu of such .an averment, the execution of the contract is stated in such fourth paragraph, substantially as it is stated in the appellants’ complaint.
It is claimed by appellants’ counsel that the third paragraph of appellee’s answer, being his first counter-claim, was insufficient on demurrer, because “ the alleged contract, therein referred to, on which appellee bases Ins right to recover” (in .the language of counsel), “ is believed to be in the nature only of a proposition by appellee rather than a contract or agreement in the ordinary sense.” In other words, the appellants ■claim in argument that the written instrument, which they, .as well as the appellee, have declared upon in this action as the mutual and binding contract of the parties on both sides, is merely an unilateral contract, which either party was at liberty to recede from or abandon “at any stage of the proceeding.” In view of the allegations of their complaint, •counting expressly upon the mutuality and binding force of the contract, this objection of the appellants to the sufficiency ■of appellee’s counter-claim comes too late to be available, even if it were well taken. But., as applied to the paragraph of counter-claim to which the objection is made, it would not have been well taken, we think, no matter when made nor under what circumstances. In Street v. Chapman, 29 Ind. 142, it was held by this court that where a contract is signed
Appellants’ counsel also insists that appellee’s counterclaims are' insufficient on demurrer because they fail to show that appellee “ had specifically complied with the terms of the contract” sued upon. Upon this point appellants’ counsel says: “It is true that*defendant therein avers that he ‘fully performed said contract on his part;’ but it is plain he can not mean this in the ordinary sense, for it is admitted that the contract is not performed as a whole and entirely, whoever may be to blame therefor.” There is nothing in this objection to the counter-claims, and this is shown conclusively, we think, bv the language we have just quoted from the brief of appellants’ counsel. In section 370, R. S. 1881, it is provided that, in an action upon a contract, “it shall be sufficient to allege, generally, that the party performed all the conditions' on his part.” This section is a substantial re-enactment of section 84 of the civil code of 1852; and since this latter section took effect this court has uniformly held that, in an action upon a written contract, it is sufficient for the plaintiff to allege generally, in his complaint, that he has performed all the conditions of such contract on his part to be performed. Purdue v. Noffsinger, 15 Ind. 386; Home Ins. Co. v. Duke, 43 Ind. 418; American Ins. Co. v. Leonard, 80 Ind. 272.
The objections urged by the appellants’ counsel, in argument, to the sufficiency of appellee’s counter-claims, do not
The only remaining question for our consideration and decision is this: Did the trial court err in its conclusions of law upon its special finding of facts? This question is presented here solely upon the appellants’ exceptions to the court’s conclusions of law. The special finding of facts was not called in question, either by a motion for a venire de novo or by a motion for a new trial. By their excejitions to the conclusions of law, the appellants admitted that the facts were fully and correctly found by the court, hut said that the court had erred in applying the law to the facts so found, in its conclusions of law. Cruzan v. Smith, 41 Ind. 288. Doubtless it is true that, after their exceptions to the conclusions of law were disposed of, the appellants were not precluded thereby from questioning the correctness of the facts specially found, or the failure of the court to find facts which were proved, either by a motion for a new trial, or by a motion for a venire de novo, addressed to the trial court. Robinson v. Snyder, 74 Ind. 110; Bertelson v. Bower, 81 Ind. 512 ; Braden v. Graves, 85 Ind. 92; Dodge v. Pope, 93 Ind. 480.
But while the appellants had the undoubted right to call in question the correctness of the facts specially found by the court, yet, as we have already said, they did not avail themselves of this right in any legal manner. The case is presented here, therefore, upon the appellant’s exceptions to the conclusions of law, precisely as they presented it to the trial court. They admit here, as they admitted below, for the purposes of their exceptions, that the facts were fully and correctly found by the court; and they say here, by their as
We find no error in the record of this cause, which authorizes or requires the reversal of the judgment.
The judgment is affirmed, with costs.