62 Ind. App. 290 | Ind. Ct. App. | 1915
Lead Opinion
This was an action by appellant to enforce the collection of eight promissory notes, aggregating $3,865, against appellees, executed by them tcf The Russell & Company, a corporation of Massillon, Ohio, and‘held by appellant by indorsement. The defense interposed to the collection of the notes was predicated upon two affirmative paragraphs of answer addressed to the complaint, which consisted of eight paragraphs, each being based upon one of said notes respectively. It is admitted by both paragraphs of answer that the notes are due and unpaid, and were executed by appellees, but that they were executed in consideration of the sale and delivery to appellees by The Russell & Company of a certain device, consisting of a traction engine and eight wagons, which were intended to constitute a train for the purpose of hauling gravel in the construction of gravel roads. One of said paragraphs proceeds upon the theory of a breach of warranty and the other upon fraud in the sale of the above
Appellees assert that many of the errors relied upon by appellant are not properly presented and are therefore obviated under the rules of appellate procedure. As to such, we shall direct our attention at this time.
It is insisted by appellees that no error can be predicated upon the giving or refusing to give instructions for the reason that the record fails to show that the instructions were filed and exceptions properly reserved thereto. The state of the record as originally filed in this court, and at the time appellee filed his brief, would preclude an examination of the instructions for the reasons above assigned. Since that time, however, Cause No. 9273 of this court has been consolidated with this cause, which brings before us a nunc pro tunc entry showing the filing of the instructions and the reserving of the proper exceptions to the same. To the granting of the nunc pro tunc entry appellees in this cause duly excepted, and present for consideration the question as to whether the memorandum made on the bench docket by the trial court originally in reference to instructing the jury was sufficient upon which to grant appellant’s application for a nunc pro tunc entry.
There are authorities to the effect that the judge is such an essential part of the court that his absence for any length of time, without suspending the trial, will vitiate the proceedings, whether objections be made at the time or not; on the other hand, there are jurisdictions, of which this state is among the number, which hold that misconduct of anyone connected with the trial not affecting the jurisdiction of the court when acquiesced in without objection is waived, even though it be of such character that might otherwise vitiate the verdict; however, acts of misconduct on the part of the trial judge or anyone connected with the trial might be of such a nature as the policy of the law would forbid any inquiry as to whether' harm resulted or not. The following authorities are instructive as to the above propositions. Starr v. United States (1903), 4 Ind. T. 550, 76 S. W. 105; Thompson v. People (1893), 144 Ill. 378, 32 N. E. 968; Meredeth v. People (1877), 84 Ill. 479; Horne v. Rogers (1900), 110 Ga. 362, 35 S. E. 715, 49 L. R. A. 176; Ellerbe v. State (1897), 75 Miss. 522, 22 So. 950, 41 L. R. A. 569; O'Brien v. People (1892), 17 Colo. 561, 31 Pac. 230; State of Iowa v. Hammer (1902), 116 Iowa, 284, 89 N. W. 1083; Waterman v. State (1888), 116 Ind. 51, 18 N. E. 63; Kruse v. St. Louis, etc., R. Co. (1911), 97 Ark. 137, 133 S. W. 841; State of Iowa v. Carnagy (1898), 106 Iowa 483, 76 N. W. 805; Henning v. State (1886), 106 Ind. 386, 6 N. E. 803, 7 N. E. 4, 55 Am. Rep. 756; Coleman v. State (1887), 111
Appellant permitted the act on the part of the presiding judge to be repeated without objection, and his absence was nothing more than momentary, and then for the performance of services connected with the trial. In his absence, there does not appear from the record to have been any objections made on the part of appellant to any remarks that were made by appellees’ counsel in his argument, nor is there anything to show that the absence of the trial judge was in any manner prejudicial to appellant. No doubt a word to the bailiff that the trial judge’s presence was desired Would have brought him back to the bench immediately. The better practice requires the visible presence of a presiding judge; that he be within hearing distance at all times diming the actual progress of the trial, but the facts disclosed by the record in this case show no .available error on account of the misconduct of the presiding judge in this particular.
The legal proposition that when the expressed terms of a contract, relating to the purchase of machinery manufactured by the seller, do not relate to obligations created by an implied warranty, the same is not excluded, is fully covered by the Penn, etc., Glass Co. v. De LaVergne Mach. Co. (1914),
In the light of the authorities, there was an implied warranty that the outfit purchased by appellees was fit for the purpose for which it was purchased, and being entirely worthless, there was a failure of consideration by reason of the breach of implied warranty. This paragraph of answer stated a defense to the complaint and the demurrer was properly overruled.
The paragraph of answer based upon fraud discloses briefly that The Russell & Company of Massillon, Ohio, sold to appellees a traction engine and eight wagons, which they manufactured for the purpose of hauling gravel, in consideration of $4,365; that appellees knew nothing about the merits of the outfit, which fact the company well knew, and with the idea of defrauding appellees, the company procured their local agent in Hamilton County, Indiana, whom they knew was a close friend of appellees, and upon whom they knew appellees would rely, to represent to them that The Russell & Company manufactured an outfit, consisting of an engine and a series of wagons, which appellees could use in their business to a great financial advantage; that each wagon would hold six cubic yards of gravel, and that the engine would draw eight wagons in the form of a train; appellees believed the representations made and after visiting the factory where they saw the. outfit purchased, they had the same delivered to them, and in May, 1910, appellees attempted to use the outfit but could not; that the engine was unable to draw the wagons or any number of them; an effort was made by the company to. operate the same, but it could not do so; the company found that it could not be made to do the work for which it was purchased,
The gravamen of the charge of fraud in the answer is that the company that manufactured and sold the' articles of property to appellees made representations to them with a reckless disregard for the truth, and that appellees were without any knowledge as to the matter under consideration, and relied thereon and were damaged thereby.
In Conant v. National State Bank, supra, the sellers represented that they were experts in flour mill machinery; that they had a peculiar knowledge in relation to flour mill machinery, and the purchasers were ignorant of such matters, and that the sellers being experts, and with an intent to deceive the purchasers and to take advantage of their want of knowledge, represented that the machinery was adapted to and in all respects sufficient, and had a capacity of one hundred barrels per day, to maké three grades of flour economically and
Cause No. 9273, in which a nunc pro tunc entry was granted in the court below and consolidated with this cause is affirmed. This cause, being No. 8758, is reversed, with instructions to the lower court to sustain the demurrer to the paragraph of answer charging fraud, and for further proceedings in accordance with this opinion.
Rehearing
It is contended by appellees in their petition for a rehearing that the court was in error in holding (1) that the fourth paragraph of appellees’s answer was insufficient to state a defense to appellant’s complaint; (2) in reversing the judgment even in the event the fourth paragraph' of appellee’s answer was insufficient.
Judge Campbell in the case of Picard v. McCormick (1862), 11 Mich. 68, says: “Where a purchaser, without negligence, has been induced by the arts of a cheating seller to rely upon material statements which are knowingly false, * * * it can make no difference in what respect he has been deceived, if the deceit was material and relied on.” The facts that gave rise to this general statement were where a jeweler made false statements to an unskilled purchaser of the value of articles, which none but an expert could be supposed to understand. The facts pleaded in the paragraph of answer under consideration, as we have seen, do not come within the rule announced in the foregoing decisions.
Appellees cite Hoffa v. Hoffman (1870), 33 Ind. 172, and decisions announcing like principles of law. In this case, it was said, “The false and fraudulent representations as to the capacity of the woolen factory, as to what it had done, and the amount of custom thereto in the past, were matters about which the plaintiff was held in good faith not to misrepresent.” This was a statement made concerning a material fact — what the factory had done in the past, and the extent of its customers. This decision furnishes no support to appellees.
In Conant v. National State Bank, supra, it was said: “The representations of the sellers of the machinery were as to what the machinery would do in the future, and such representations are deemed expressions of opinion, unless facts are averred which give them a different effect. The statements of the seller were not representations of what had been done in the past, but were assertions of what could be done in the future.”
The answer was drafted solely upon the theory of fraud; it was so treated by the court throughout the trial. The court addressed eight instructions to the issue of fraud as joined upon this paragraph of answer, whereby the jury’s attention was called specifically to the principles of law involved in such issue. There was no other issue joined under which the evidence of fraud could have been admitted, nor to which the instructions on the subject of fraud were applicable. In other words, an issue of fraud was tried, when such issue was not properly charged.
The petition for a rehearing is overruled.
Note. — Reported in 110 N.E. 73, 112N.E. 904. See under (1) 11 Cyc 764; (5) 40 Cye 2511, 2514; (7) 3 C. J. 807, 38 Cye 1297; (8) 35 Cye 401; notes, 22 L. R. A. 189; 15 L. R. A. (N. S.) 855. Parol extension of the time for payment of a note, validity, Ann. Cas. 1914A 103.