36 Ind. 141 | Ind. | 1871
Action by the appellees against the appellant upon a promissory note executed by the latter to the former.
The defendant answered in three paragraphs. The third paragraph, stating them in their inverse order, was want of consideration; the second, payment; and the first set up, by way of counter claim, in substance, the following facts : that the consideration of thevnote was the manufacturing by the plaintiffs, for the defendant, of fifty fanning mills, known as Griswold’s patent, to be made after a certain pattern mill furnished by the defendant to the plaintiffs, the defendant to furnish the castings, wire cloth, zinc screens, and sheet iron for the drums therefor, which was done; that the amount to be paid therefor, by the defendant to the plaintiffs, .was ten
The plaintiffs replied to the entire answer by general denial thereof; and, secondly, to the first and third paragraphs as follows:
“And for further reply to the first and third paragraphs of defendant’s answer, plaintiffs say that the mills for which said note was given were manufactured during the summer and fall of 1867, under the direction of one Caleb Amsden, who was then and there the authorized agent of said defendant ; that said Amsden, as such agent, was satisfied with and received said mills, and sold twenty-three of them; and that afterward, to wit, on the — day of-, 1868, the said defendant, Hunter, after he had seen and examined said mills, and well knowing the manner in which said mills had been manufactured, executed his said note for the said mills, in settlement of said claim; wherefore,” etc.
To this paragraph of the replication the defendant demurred, but the demurrer was overruled, and he excepted.
Trial by jury; verdict and judgment for the plaintiffs; a new trial being denied to defendant, who excepted. Numerous errors are assigned, which need not be noticed in detail, except so far as the points arising under them are urged as ground of reversal. The most important question arising in the record is that presented by the ruling of the court on the demurrer to the second paragraph of the reply • set out.
It will be observed that the first paragraph of the answer or counter claim alleges that the defendant only received twenty-three of ¡the mills, but it does not allege that the plaintiffs were anywise in default in respect to the residue of the mills which were to have been manufactured, unless the pleading be open to the inference that the residue were duly constructed according to the agreement, except the defects alleged. This is, perhaps, the fair interpretation of the pleading, and is the most favorable one for the defendant,
The reply alleges that the mills for which the note was given were manufactured under the direction of the defendant’s agent, who was satisfied with, and received the same, and sold twenty-three of them, etc. This allegation, we think, fairly implies that the plaintiffs'made all the mills • stipulated for, and the following allegation as to the defendant having examined the mills, and his knowledge of the-manner in which they had been made, and his giving the note therefor applies to all the mills, and not merely to the-twenty-three which the defendant admits he received.
Do the facts set up in the reply preclude the defendant from objecting that the mills were not such as were stipulated for in the original contract ?
We are not called upon to determine whether the mere-acceptance of the mills, without objection, would thus preclude him, although he had examined them and knew the-manner in which they had been constructed. The authorities upon this point, in this State, are apparently conflicting,, and perhaps not easily reconciled. The cases of Lomax v. Bailey, 7 Blackf. 599; Epperly v. Bailey, 3 Ind. 72 ; McKinney v. Springer, 3 Ind. 59; and Coe v. Smith, 4 Ind. 79, cited by counsel for the appellant, go far toward establishing the doctrine that such acceptance would riot preclude the defendant from setting up, by way of counter claim or otherwise, that the mills were not such as were contracted for. Perhaps there are other cases running through our reports falling within the general doctrine of those cases.
On the other hand, the cases of Ricketts v. Hays, 13 Ind. 181, and McAroy v. Wright, 25 Ind. 22, hold the contrary doctrine. See also the cases of Everett v. Gray, 1 Mass. 101, and Wilkins v. Stevens, 8 Vt. 214. We need not, in this opinion, adopt either line of the authorities to the exclusion of the other, or draw distinctions between the cases with a view to reconciling them.
We think the facts alleged in the replication, taken altogether, show an acceptance by the defendant of the mills in full discharge of the plaintiffs’ contract, and that any defects in mills were waived. The giving of the note in settlement of the claims, especially as the defendant had seen and examined the mills, and was apprised of the manner in which they had been constructed, was a clear waiver of any defect in them. Swank v. Nichols' Adm'r, 20 Ind. 198; same case, 24 Ind. 199; The Evansville, etc., Railroad Co. v. Dunn, 17 Ind. 603; Brooker v. Hetzelgesser, 35 Ind. 537. There is no fraud or deceit charged against the plaintiffs; and on the facts set up in the reply, we think it clear that the defendant has no ground of defense or counter claim, by reason of anything alleged in the first paragraph of his answer. The reply also shows a valuable consideration for the note, and hence, is sufficient replication to the third paragraph of the ■answer as well as the first.
There was no error in the ruling of the court on the demurrer to the reply in question.
The court, in its fifth charge to the jury, after stating the ■substance of the replication above set out, and that the •court had held it to be good, proceeds as follows: “ If, therefore, you find from the evidence that the mills in question were built under the direction of the defendant’s agent, and that said agent knew, or might have known, the character ■of the workmanship, and the conformity or non-conformity ■of said mills to the model, and received said mills for his principal, and sold a part of them; and that the defendant, ■after having seen and examined said mills, being fully advised ■as to the manner in which they were made, gave his note
If we are right in the conclusion at which we have arrived, in respect to the validity of the replication, it follows that no 'error was committed in giving the charge in question.
The appellant excepted to the fourth charge of the court, which is as follows, viz.: “ If you believe, from the evidence, that the defendant, Hunter, through Amsden, his agent, contracted With the plaintiffs to construct fifty fanning mills according to a model mill, each supplying a part of the materials, and, if you further find that said agent in making said contract, stipulated with plaintiffs to make certain changes in said manufactured machines from the model mill, such acts would be within the scope of the agent’s authority, and binding upon Mr. Hunter; and if you find from the evidence that said agent, in contracting with the plaintiffs for the construction of said mills, directed changes to be made from the model mill, Hunter would be concluded by such act of his agent, and liable to pay the contract price, if the plaintiffs constructed said mills to correspond with the model, except as to changes made by the direction of the defendant’s agent, if such changes are made to conform to the directions of the agent.”
There is some conflict in the evidence in respect to the question whether Amsden was authorized by the defendant, in making the contract wdth the plaintiffs for the construction of the mills, to contract for the departure from’the model furnished. The charge in question, if too broad as an abstract proposition, a point which we do not decide, was, as applied to the case, productive of no harm to the defendant. The evidence shows that after the defendant had received, and seen, and examined some of the mills, and knew the manner in which they had been constructed, he retained those that he had received, and gave the note in suit for what was due, as we infer, for the entire fifty mills. This was an adoption of the contract of his agent, whether
As, under the facts of this case, the charge given, if technically wrong in the abstract, could not have operated to the injury of the defendant, we cannot reverse the judgment on account of the charge, as a harmless error is no ground for reversal.
On the trial, Leavitt was permitted to testify that Amsden said, at the time he received the machines, “that he was satisfied, and-that they were- a smooth, nice job.” This testimony was objected to, .without showing an agency for the purpose of examining, inspecting, and receiving the mills, but the objectionwas overruled, and the defendant excepted. Without stopping to inquire whether the original authority conferred upon Amsden to make the contract for the construction of the mills did not authorize him to accept and receive them when constructed, we1 think the evidence already then before the jury obviated the objection to the testimony. The defendant had already testified as follows, among other things:' -
“I received twenty-three mills on this contract. I disposed of nineteen or twenty mills.”
These mills, thus received by the defendant, seem to be the same mills that Amsden was satisfied with, and which he thought to, be a nice, smooth job. Thus the defendant adopted and ratified the acceptance of the mills by Amsden, and this was equivalent to- an origiñal authority to accept and receive them..
The defendant, on- the trial of the cause, offered in evidence a letter written by Amsden to himself. The letter was dated at the “ office of R. Leavitt, Vernon, Indiana, July
We have thus examined all the grounds relied .upon for-a reversal of the judgment, and find no sufficient cause for reversal.
The judgment below is affirmed, with three per cent, damages and costs.