No. 12,188. | Ind. Ct. App. | Nov 19, 1925
Action by appellee on account, in which it seeks to recover for stucco sold appellant. *207
To the complaint, appellant filed answer in two paragraphs, the first being a general denial and a second alleging a breach of implied warranty, and asking recoupment. To this paragraph, appellee filed a general denial.
There was a trial by the court which resulted in a judgment for appellee in the sum of $992.90 and against appellant on his demand for recoupment.
The only error assigned is that the court erred in overruling appellant's motion for a new trial.
We give no consideration to appellant's contention that appellee, being a foreign corporation, must allege and prove that it has complied with § 4914 Burns 1926, § 4090 Burns 1, 2. 1914, before it can maintain its action, for the reason that no such question was presented to the trial court.
Appellant earnestly contends that the court erred in admitting in evidence appellee's "Exhibit," which, so far as we are able to determine, seems to have been a book of instructions and 3. specifications. But neither such exhibit, nor any abstract or synopsis thereof, appears in appellant's statement of the evidence. Appellee sets out what purports to be a synopsis of the exhibit, but nowhere, either in appellant's brief or in appellee's brief, are we apprised of appellant's objection to this evidence, if any there was. Nothing, therefore, as to this point is presented.
Appellant rightly states the rule to be that if an article is sold at a fair price and the seller knows that it is purchased for a particular use, there is an implied warranty that it 4. is fitted for such use. Brenton v. Davis (1847), 8 Blackf. 317" court="Ind." date_filed="1847-01-09" href="https://app.midpage.ai/document/brenton-v-davis-7031367?utm_source=webapp" opinion_id="7031367">8 Blackf. 317, 44 Am. Dec. 769; Merchants Nat. Bank v.Nees (1915),
There was evidence that there was an improper mixture of the ingredients of the stucco, and that there was an improper application of it to the building being stuccoed. There was 5. also evidence of the good quality and durability of stucco procured from the same batch of material as was the material furnished appellant, made at the same time, shipped at the same time, and used at about the same time of year. This evidence was clearly proper, and the court committed no error in admitting it. Sheffield-King Milling Co. v. Spink Milling Co.
(1923),
We find no reversible error. Judgment affirmed.