158 Ind. 325 | Ind. | 1902
Action by appellant to recover on two promissory notes executed by the appellee. Answer by the latter, demurrer thereto overruled, trial by jury, and verdict returned in favor of appellee, and judgment rendered thereon over appellant’s motion for a new trial. The only alleged error argued and pressed by appellant for reversal is the overruling of its demurrer to the answer. The defendant in his answer to the complaint admits the execution of the notes in suit, but avers that the plaintiff ought not to have and maintain his action thereon, for the reason that about two months before the execution of the notes he “purchased of the plaintiff through its agent, conditionally, one binder, one mower, and one hay rake, at and for the agreed price of $180 to be paid, $90 on the 1st day of September, 1891, and $90 on September 1, 1895.” It is then averred that the contract or agreement of purchase between said agent and defendant for the purchase of these implements was that the defendant was to take them on trial, “and if they did not work right he was not to pay for them”; “that the said binder, mower and rake were to do good work, and the hinder was to be as good a one and do as good work as any binder in the United States; that the said agent was to set up and start the binder, mower, and rake, and when set up and tried, if they did do good work, then the same were to be the property of the defendant, and he was to pay for the same as hereinbefore stated.” The pleading further charges that the defendant hauled these implements from the town of Bryant in Jay county, Indiana, to his farm in Penn township in said county, and that an agent of plaintiff, together with an expert sent by it, came to his farm, set up and started the binder to work. After this follows a recital of what was said in a conversation had by and between the defendant and the agent, and then it is alleged that the agent and the expert “went away”, and, after they had left, the defendant and his employes hitched three horses to said binder and went out into' the field and began to cut wheat
The answer is certainly a specimen of bad pleading, being an intermixture of facts, conclusions, and evidence all thrown together, and the pleader seems to have succeeded in violating the rules of good pleading. The answer professes, both at the beginning and close thereof, to be in bar of the action in its entirety, for the alleged reasons that,
In fact, counsel for appellee in his brief concedes that the answer is not based on a written warranty, but asserts that it is founded on a sale of the binder to appellee on the condition that, if the machine on trial worked all right, he was to keep it and pay the agreed price.. It is shown that on August 28, 1894, some two months after the binder had been sold to the defendant, and after he had given it the trials or tests as alleged, and therefore was fully apprised of its deficiency, he entered into a new contract with an agent of the plaintiff who called upon him for the purpose of closing the sale as originally made. It was then agreed, it seems, that, if he would execute his notes, a written guaranty would be given by the agent that he would not have to pay them until the binder did .good work. In consideration of this proposition the notes were executed for the purchase price, and the time of paying the same was so changed or extended that the first half was to be due and payable September 1, 1895, instead of September 1, 1894, and the remainder September 1, 1896, and in return a written guaranty was executed by plaintiff’s agent to the effect that the notes were not to be paid until the machine would do good work. Under this agreement it may be said that the defendant was authorized to retain and test the binder for a reasonable time in order to determine whether it did good work, and the notes were not to be paid unless or until the machine complied with this agreement. Some three years or over after the execution of the notes, on February 12,