155 Ind. 648 | Ind. | 1900
— Appellant unsuccessfully sought-to recover on iiotes and to foreclose a chattel mortgage executed hy appellee. The assignments are that the court erred (1) in overruling the demurrer to the answer, (2) in stating conclusions of law on the special findings of fact, (3) in setting aside its judgment and making additional findings of fact, and (4) in overruling the motion for a new trial.
The answer admits the execution of the notes and mortgage. In avoidance of appellant’s right of recovery, appellee set up the following facts: The notes and mortgage were executed on June 16, 1896, to evidence and secure the payment of the purchase price of threshing machinery sold that day by appellant, a corporation of Marion, Ohio, to appellee in Marion county, Indiana. On May 9, 1896, appellee signed a written order for the machinery. The order was made out on a printed blank at appellant’s agency at Indianapolis, Indiana. The order contained specific warranties of the machinery, which were to be binding on appellant if the order was accepted by the home office; stipulated that no other warranty would be recognized; and provided that the purchaser forfeited all claims under the warranty by failing to give immediate notice of defects by registered letter to appellant at Marion, Ohio. On May 12, 1896, before appellant accepted the order, appellee countermanded it and notified appellant that he would not take the* machinery. On June 4, 1896, appellant notified appellee that if he would take the machinery he could transact all
The answer is voluminous and somewhat confused in structure; but the foregoing epitome exhibits the material and controlling facts. The answer was a complete bar. Appellant could not maintain its suit for the purchase price of machinery which it agreed to take back if the machinery, after a fair trial, would not do good work, — if appellee did give the machinery a fair trial and it then failed to do good work. McCormick, etc., Co. v. Hays, 89 Ind. 582; McCormick, etc., Co. v. Gray, 100 Ind. 285; National Bank, etc., Co. v. Dunn, 106 Ind. 110; Seiberling & Co. v. Newlon, 16 Ind. App. 374; Champion Machine Co. v. Mann, 42 Kan. 372, 22 Pac. 417.
The special findings of fact fully cover all the material
The special findings of fact and conclusions of law were filed June 29, 1898. On July 1, 1898, appellant filed a motion for a new trial, which was at once overruled, seventy days’ time was given for filing bills of exceptions, and judgment for appellee was entered. On July 2, 1898, the court set aside the entry of July 1st, and added to the finding certain facts which were in evidence but were not included in the finding filed June 29th. Appellant filed a motion for a new trial, which was overruled, time was given for filing bills of exceptions, and judgment was again entered. These proceedings were all had at the same term. The cause was in fieri, and the court was authorized to amend the finding so that it should include all the material facts that the court believed to have been proved. Thompson v. Connecticut, etc., Ins. Co., 139 Ind. 325; Jones v. Mayne, 154 Ind. 400.
It is contended that the finding of the court was contrary to law and not sustained by sufficient evidence. There was evidence tending to prove all the material facts found by the court. One Newby, as shown by the evidence, was appellant’s state agent in charge of its office at Indianapolis. He was appellant’s agent to sell machinery and his powers were general. He sold appellee the machinery upon a warranty, and the sale was not complete until the machinery was made to comply with the warranty. What the agent did in remedying the defects in the machinery was in the line of perfecting the sale, and within the scope of the agency. Springfield, etc., Co. v. Kennedy, 7 Ind. App. 502; Port Huron, etc., Co. v. Smith, 21 Ind. App. 233. It is a well settled
A question is made in the briefs concerning the earnings of the machine while in appellee’s possession. That is outside the issues.
Judgment affirmed.