183 Ind. 311 | Ind. | 1915
— Suit by appellant, a corporation, against appellee, a corporation, on account, for automobile parts. The amount demanded was less than $300. Appellee filed two paragraphs of counterclaim in each of which damages were demanded in the sum of $10,000. In what is termed the second amended first paragraph of amended counterclaim
*314 (a) That the territory under this contract shall be * * * all of * *' * Indiana excepting the Counties of Lake, Porter, Laporte, St. Joseph, Elkhart, Lagrange-and Steuben. * * * (b) That the undersigned, the dealer, hereby orders and agrees to take the following quantities of the styles and types of Hart-Kraft commercial power wagons, as are designated in the contract, to which this is attached, at the prices and terms as stated below and within the period of time embraced in the contract; the deposit as per terms of said contract to be due and payable at the túne of acceptance of same by the Hart-Kraft Motor Co.
Quantity Model Retail Dealers
3 A-3 $1,200.00 $960.00
1 A-4 1,225.00 980.00
and the option to purchase at list-price less 20%, twenty-five (25) additional models specifications together with deposits on three (3) of which to be submitted not later than March 15th, 1909. One model A-3 to be delivered at once, 2 model A-3, 1 model A-4 to be shipped not later than April 1st, 1909. (c) This agreement does not cover, or grant selling rights on vehicles of special design or construction, or any vehicle not regularly catalogued and mentioned in the body of this contract, all the above being subject to special agreement.
Terms: Net cash, or sight draft on bill of lading for balance due f. o. b. shipping point.”
The contract further provides that orders from the dealer may be accepted subject to delay in completion caused by strikes, etc.; that the dealer with each order shall make prepayment or pay therefor on shipment or presentation of sight draft with bill of lading attached; that accounts for parts shall be due on the fifteenth of the month following shipments; that claims under the guarantee must be made according to rules mailed dealer; that the dealer must work for the sale of the company’s wagons to the best of its ability, and must not sell wagons or parts thereof at less than prices named in retail price lists.
The guaranty, applying only to wagons maintained under said maintenance contract, and under the dealer’s direct supervision, is as follows:
*315 “We guarantee all parts of our power wagons, except rubber tires, for a period of one year following the date of shipment, against inherent defects and breakages of defective materials and will replace free of cost, f. o. b. factory, broken parts if defects are shown; defective or broken parts to be returned to factory, charges prepaid.”
It is further averred that appellee paid appellant $3,862 for the four wagons described in the contract, and after-wards on June 19, 1909, purchased two cars of model A-4, and one car of model A-3, for which it paid appellant the sum of $2,920; that appellee sold two model A-3 cars for $2,400 to the Excelsior Laundry Co., of Indianapolis, and one model A-4 car for $1,200 to the Progress Laundry Co., of Indianapolis, and said purchasers at the time executed maintenance contracts for the keeping of the cars, and they were thereafter used in the usual and ordinary manner; that within ten days thereafter, many defects appeared in each of the cars, and appellee at once notified appellant thereof and shipped to appellant the defective parts, with charges prepaid and in compliance with the conditions of the contract, but appellant failed to replace them or was so dilatory in replacing them that appellee was compelled, pursuant to the provisions of the maintenance contracts, to remove certain parts of the four unsold cars to supply the places of the defective parts; that from time to time appellee returned to appellant certain inherent defective parts of the three cars, which should have been replaced free of charge, but that appellant demanded payment for such replacements, to the extent of more than $300; that the parts, for the value of which appellant sues, are the replacements so demanded of it by appellee under its guarantee; that said cars were inherently defective, and were unable to stand the wear and tear of ordinary usage; that practically all of the four cars were used in keeping the three cars in repair, and in addition thereto appellee was compelled to keep a force of expert mechanics at such task, at an expense of
Substantially the same facts are averred in the other paragraph of counterclaim. Appellant’s demurrer to each paragraph was overruled. There was a trial by jury and verdict and judgment for appellee in the sum of $6,500. Error is predicated on the action of the court in overruling the demurrers to each paragraph of counterclaim and in overruling appellant’s motion for a new trial.
The principal question in controversy depends on whether there was a warranty that the power wagons were reasonably suitable for the purpose for which they were purchased, and if so, whether a breach thereof has been properly pleaded. Expert evidence was admitted which shows that the'design of the wagons was so faulty as to preclude their successful operation as commercial wagons. Appellant contends (1) that there is in the contract no express warranty that will cover the fitness of the machines for the purpose intended and (2) that where, as here, there exists an express warranty, an implied one of fitness is excluded.
It will be noted that here appellee was authorized to sell appellant’s machines in nearly all of Indiana, and that the guaranty could only apply to such Indianapolis sales as came under appellee’s maintenance contracts, and that appellee was bound to sell the machines at the prices stipulated in the agreement. We are of the opinion that the implied warranty of fitness was not excluded by the terms of the written contract, and that a breach of such warranty is sufficiently pleaded. Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N. E. 675, 102 N. E. 99. There was no error in overruling the demurrers, and there was some evidence to sustain the material allegations of the counterclaims.
Note. — Reported in 109 N. E. 39. As to parol evidence to show warranty outside of contract, see 5 Am. St. 197. As to an application of warranty in a contract of sale to goods not in existence when the contract is made, see 6 Ann. Cas. 115. See, also, under (1) 35 Cyc. 399; (2) 35 Cyc. 392; (3) 35 Cyc. 392, 450; (4) 38 Cyc. 1788.