41 Ind. App. 361 | Ind. Ct. App. | 1908
Action by appellee to recover upon a written contract averred to have been entered into with appellants. By such contract, which was made in Orange county, appellee appointed appellants as its agents for the sale of fertilizer in said county, compensation to be made by a commission on the goods sold. A copy of the contract is made an exhibit. It is also averred that the appellee was a corporation duly organized under the laws of the state of Ohio. To this pleading appellants filed a verified answer in abatement, setting up a total failure of appellee to comply with the provisions of the statute requiring agents of foreign corporations to file evidence of authority and the consent of such corporation to be sued in the courts of this State in regard to transactions had therein. §3453 Bums 1901, §3022 R. S. 1881; §4099 Burns 1908, §3023 R. S. 1881.
“Should any fertilizer that I shall order of you remain unsold on December 1, 1902, I agree to purchase same and pay you therefor at above-named prices, December 1,1903, if you so request. ’ ’
The evidence is uncontradicted that the unsold fertilizer which the terms of said agreement might cover was delivered to appellants in an unsalable condition. The contract cannot be made to apply to goods not reasonably fit for the purpose for which they were intended. Glucose Sugar, etc., Co. v. Climax Coffee, etc., Co. (1907), 40 Ind. App. 182; Oil-Well Supply Co. v. Watson (1907), 168 Ind. 603.
The judgment is reversed, and the cause remanded, with instructions to sustain appellants’ motion for a new trial and for further proceedings.