16 Ind. App. 374 | Ind. Ct. App. | 1896
The appellant sued appellee to recover the purchase price of an Empire reaping machine sold by it to him and warranted to do good work. The contract of sale was reduced to writing and was the basis of appellant’s action. To the complaint appellee filed an answer of several paragraphs, to each of which demurrers for want of facts were filed and overruled by the court, and exceptions reserved to such rulings. The appellant filed replies to the special answers and upon the issues thus joined, the cause was submitted
The first, second, third and fourth specifications of error assigned relate to the rulings of the court below upon the demurrers to the appellee’s answer. The second specification seeks to question the sufficiency of the‘third paragraph of the answer, but inasmuch as the court makes its findings expressly under the other paragraphs, the error in overruling the demurrer to the second paragraph, if we concede that paragraph to be bad, was harmless.
The second, fourth and fifth paragraphs are the same in substance as those recently held good in the case of Seiberling & Co. v. Rodman, 14 Ind. App. 460.
The material facts found by the court within the issues joined, are in substance as follows: That the appellant, a corporation engaged in the manufacture and sale of machinery, on the 30th day of May, 1893, through its local agent, John 0. Grubb, resident in Washington county, Indiana, who had the “selling, adjusting, setting up and otherwise managing in the sale of” appellant’s combined reaper and binder, known as the Empire machine, sold to the appellee one of its machines for which he agreed to pay $120.00 on the 1st day of September, 1893, the contract of sale having been reduced to writing and duly signed by the parties. In the contract of sale the appellant warranted the machine to be well made, of good material and, if properly managed, to do good work. And it was provided that the appellee should use the machine one day in the harvest field,to give it a fair trial, he to see that it was properly managed, and if upon such trial it did not do good work, he was “to give written notice both to the agent from whom he re
That the warranty relied upon by appellee was made conditional and dependent upon the compliance on his part, with certain things to be performed by him was decided in the case of Seiberling & Co. v. Rodman, supra.
The object of the stipulation requiring notice to be given in writing, both to the selling agent and the company was evidently for the purpose of making sure that an opportunity should be had to remedy any defects which might be found in the workings of the machine. The appellant could waive the giving of the notice, or if it was cognizant of the fact that the machine was not working and it had the opportunity and made an effort to remedy the defect, the necessity for the notice would be removed. The Ohio Thresher and Engine Co. v. Hensel, 9 Ind. App. 328. The court found that the appellant’s selling agent was not only present at the time the machine was tried and knew that it did not do good work, but that he tried to rem
In presenting the seventh, eighth and ninth specifications of error assigned, counsel say: “The questions these assignments of error are assigned to present, all grow out of the fact that no judgment was entered on the special finding at the term it was made and filed.”
The mere fact, as shown by the record, that the cause passed oAmr from term to term without a judgment having been rendered on the finding, or any order of the court continuing the cause, did not divest the court of jurisdiction, either of the subject-matter of the action, or of the person of the parties. There is no merit in this contention.
We are not called upon, by reason of the condition of the record, to consider and pass upon some of the questions urged on behalf of the appellant, and which, if the facts in the record made them to appear as counsel insist, would in all probability compel a different result from the one we have reached. But our decision is based upon the record as it comes to us, and not upon questions which are not disclosed or properly presented by the record.
We find no reversible error in the record.
Judgment affirmed.