46 Ind. App. 645 | Ind. Ct. App. | 1910
Tbe appellee in tbe court below, upon a complaint in two paragraphs, recovered a judgment against appellant for $411.75. Appellant’s demurrers to the first paragraph and tbe amended second paragraph of complaint were overruled, and these rulings are assigned as error.
The first paragraph states “that defendant is indebted to plaintiff in the sum of $381.25 for goods and merchandise sold by plaintiff to defendant, bills of particulars of which are filed with, made a part of this complaint and marked 'Exhibit A’; that said sum is now due and wholly unpaid, and judgment is demanded. ‘Exhibit A’ was as follows:
*647 “Harshaw, Fuller & Goodwin Company sold to Penn-American Plate Glass Co.
December 16, 1905,
1-Bbl. Powd “F” Double Washed Saxony Manganese 908 pounds @ 2{c pound........... $20.43
December 13, 1905,
21 kegs arsenic
11,522
420
11,102 pounds @ 3Jc pound.......... 360.82
$381.25.”
Against this paragraph it is argued (1) that it does not show a delivery of the goods, but merely a contract of sale; (2) that it does not show.a performance; or a readiness and willingness to perform the contract on the part of plaintiff.
In the case of Bricey v. Irwin (1890), 122 Ind. 51, it is said: “It is not sufficient, where the action is for services rendered or goods furnished, to state, by way of recital, that the services and goods were of a designated valúe, but it must be directly averred as a traversable fact that the services were rendered and that the goods were furnished. It cannot be possible that a complaint to recover for the value of services rendered or goods furnished, can be good, on demurrer, without a direct averment of per
If this paragraph be considered as counting upon the recovery of the contract price of the goods alleged to have been sold to appellee, it fails to state facts within the principle reaffirmed in the case of Fell v. Muller (1881), 78 Ind. 507, 512, where it is said: ‘ ‘ ‘ It is conceived that in all cases of contracts for the sale of personal property, where it has any market value, the vendor, before he can recover of the vendee the .contract price, must have delivered the property to the vendee, or have done such acts as vested the title in the vendee, or would have vested the title in him, if he had consented to'accept it; for the law will not tolerate the palpable injustice of permitting the vendor to hold the property and also to recover the price of it.’ [Pittsburgh, etc., R. Co. v. Heck (1875), 50 Ind. 303]”
The rule seems to be that in an action by the seller of personal property as upon a sale and delivery, he must allege and prove not only a sale, but delivery as well; for until there is a delivery of the goods sold, or an excuse shown exempting the seller from making a delivery, there is a lack of performance of the contract upon the seller’s part. Indianapolis, etc., R. Co. v. Maguire (1878), 62 Ind. 140; Hayden v. Demets (1873), 53 N. Y. 426; Gaar, Scott & Co. v. Fleshman (1906), 38 Ind. App. 490; Gardner v. Caylor (1900), 24 Ind. App. 521; Dwiggins v. Clark (1884), 94 Ind. 49, 48 Am. Rep. 140.
Appellant insists that the demurrer to this paragraph should have been sustained, for the reason that it fails to set forth the essential terms of the contract; that it fails to show that the letters so written were enclosed'in an envelope, directed, stamped and mailed to and received by the parties for whom they were intended, and that it fails to allege performance on the part of appellee. None of these objections is well taken. The transaction between the parties is stated in the body of the complaint in general terms. The alleged written instrument is made a part of it, and may be considered to relieve it from the defect of uncertainty. Deane v. Indiana Macadam, etc., Co. (1903), 161 Ind. 371.
The several letters from one party to the other appear to have been signed, and, combined, constituted the written contract relied on by appellant, and, together, made up the written instrument containing all the essential elements of
As was said in the case of Mercer v. Herbert (1872), 41 Ind. 459, 462: “When a pleading is founded upon a written instrument, and a copy is referred to in, and filed with, such pleading, it becomes a part thereof, and in determining the sufficiency of such pleading, such instrument is regarded and treated as composing a part thereof. Wlien an instrument is thus made a part of a pleading, it speaks for itself, and it is not incumbent on the pleader to state the substance thereof.” See, also, Blount v. Rick (1886), 107 Ind. 238, 243; Miller v. Wayne, etc., Loan Assn. (1904), 32. Ind. App. 480.
Appellant, in support of its contention, cites the case of Western Union Tel. Co. v. State, ex rel. (1905), 165 Ind. 492, 3 L. R. A. (N. S.) 153. The court in that case was. considering an answer based on an alleged written contract, which of itself did not disclose its relation to the alleged cause of action. The court held that facts must be stated showing the effect of the contract upon the cause of action to which it was pleaded. No such question is here presented.
There was no error in overruling the demurrer to this paragraph.
Other questions are presented and relied on for a reversal of the judgment in this case. They are based upon assignments challenging the rulings of the court in sustaining a demurrer to each of the three paragraphs of set-off, and to each of the three paragraphs of the counterclaim. Each paragraph of the counterclaim proceeds upon the theory of appellee’s breach of a certain contract, to the damage of appellant.
It is also further provided that “if any defendant personally served with notice omit to set up a counterclaim arising out of the contract, or transaction set forth in the complaint as the ground of the plaintiff’s claims', or any of them, he cannot afterward maintain an action against the plaintiff therefor, except at his own costs.”, §356 Burns 1908, §351 R. S. 1881.
In the case of Excelsior Clay Works v. DeCamp (1907), 40 Ind. App. 26, this court held that §§355, 356, supra, should be'construed together, and if the matter set up by way of counterclaim arises out of, or is connected with, the contract or transaction, “which is the foundation of the plaintiff’s action, the counterclaim may be entertained,” and “in determining whether the respective claims asserted by the parties arise out of the same transaction, the court is
Applying the doctrine thus announced to. the facts exhibited by the complaint and the counterclaim, we are unable to say that the claim of appellant and the claim of appellee grew out of one and the same contract, or that they arose out of the same transaction. In the absence of facts bringing the matter set up by way of counterclaim within the provisions of the statute, we are compelled to hold that, the demurrer to ea'ch paragraph of the counterclaim was. properly sustained. State, ex rel., v. Spencer (1908), 42 Ind. App. 650; Miller v. Roberts (1886), 106 Ind. 63; Douthitt v. Smith (1880), 69 Ind. 463; Standley v. Northwestern, etc., Ins. Co. (1884), 95 Ind. 254; Blue v. Capital Nat. Bank (1896), 145 Ind. 518.
Appellee’s action against appellant was for a money demand upon a contract. To that action appellant pleaded a set-off in three paragraphs, consisting of unliquidated damages alleged to have accrued to appellant from appellee, by reason of the latter’s breach of a certain written contract between them for the sale and purchase of certain goods.
The questions here presented call for a brief recital of a few facts furnished by appellant in support of its right of' set-off. Each paragraph of set-off is based on an alleged written contract between the parties, in the form of letters.
“In reply to yonr postal of yesterday, we take great pleasure in quoting you for prompt reply, and subject to arrival: 1 O.L. refined powdered white arsenic from a lot we have engaged for November shipment from Europe to New York, providing for arrival there early in December, at $2.95 per 100 pounds. F. o. b. New York, net 30, 1 per cent, 10. Thanking you kindly for this inquiry, and hoping in course to receive your valued order, we remain, ’ ’ etc.
A copy of appellant’s letter of acceptance of this proposal is not set out in either paragraph, but excuse for such failure is shown. The following facts are alleged: On November 3, 1905, appellant did unqualifiedly accept in writing said offer or proposal, and addressed and mailed the letter to appellee. Said acceptance was, in substance, as follows: Please ship us one minimum ear of arsenic $2.95 f. o. b. New York, your quotation of October 31. On November 4, 1905, appellee received said acceptance, acknowledged it, and accepted it in accordance with its letter of October 31. It is also shown that appellee wholly failed, neglected and refused, and still refuses, to deliver to appellant the goods so purchased; that the goods so sold and purchased were at no time shipped from Europe to appellee or on appellee’s account, from which it could deliver the goods so ordered by appellant; that appellee’s failure of performance of its said contract was not caused by any accident or peril at sea whereby said goods were lost or jettisoned, but such failure in the first and second paragraphs is stated to have been caused by the failure of appellee’s seller, in Europe, to ship the goods so sold to appellant by appellee.
The third paragraph contains all the facts found in each of the other paragraphs, differing only in stating the breach of the contract in suit. In this paragraph it is shown that
It is first argued that appellant’s claim is not a proper matter of set-off, because it arises 'from a violation of duty or contract, and, therefore, is not within the statute.
It has been held that a set-off is authorized when mutuality exists between conflicting claims of plaintiff and defendant, which arise out of debt, duty or contract, in an action for a money demand upon contract. Schnell v. Schnell (1907), 39 Ind. App. 556. It is immaterial that the damages are unliquidated, and arise out of a distinct and separate cause of action. Halfpenny v. Bell (1876), 82 Pa. St. 128; Axford v. Hubbell (1880), 24 Kan. 444; Wheelock v. Pacific, etc., Gas Co. (1876), 51 Cal. 223. While the point was not decided, the court in Stockton v. Graves (1858), 10 Ind. 294, after referring to the statute of set-off, said: “It would seem, then, that where a party was sued touching the subject-matter of a contract, he might set up, by way of counterclaim’ in such suit, any demand he might have for unliquidated damages, growing out of such contract; while if not sued on that contract, but some other, then he might set up by way of set-off, his claim for damages growing out of the former contract, in the suit upon the second.”
The real question presented relates to the sufficiency of. each paragraph, challenged by a demurrer for want of facts.
It is, no doubt, the law that contracts for the sale and purchase of goods, upon condition of their arrival by a certain ship, named, do not import a warranty that the goods will arrive. 1 Beach, Contracts §98.
The case of Hale v. Rawson (1858), 4 C. B. (N. S.) *85, grew out of a contract for the sale and purchase of tallow to be delivered by defendants to plaintiffs on the safe arrival of a certain vessel called the Countess of Elgin, then alleged to be on her passage from Calcutta to London. The ship arrived at London, but without the tallow on board. Held, that the only contingency in the contract was the arrival of the vessel named, and that defendants should not be excused from the performance of their contract.
In the case of Gorrissen v. Perrin (1857), 2 C. B. (N. S.) *681, the contract was for the sale and purchase of certain goods, “then on passage from Singapore, and expected to arrive at London” on certain named vessels, at certain prices then agreed upon. If either or both of the vessels carrying said goods should be lost, the agreement was to be void for the quantity so lost. In that case it was contended that the seller’s obligation was conditional on the double event: “First, the arrival of the ship, and secondly, of the goods’ being on board.” The court’s attention was called to several cases wherein the words “to arrive,” or “expected to arrive, ’ ’ and like expressions, were considered, and it was said: “We are, however, of opinion that the present ease is plainly distinguishable from those referred
The case of Abe Stein Co. v. Robertson (1901), 167 N. Y. 101, 60 N. E. 329, was an action to recover damages for the breach of a contract evidenced by a bought and sold note. The subject of the contract — goatskins—was “expected to arrive from China. Goods to be shipped immediately on steamer to New York. No arrival, no sale.” The goods were shipped by defendant from China by steamer to New York, and tendered to plaintiff. In quality they did not meet the requirements of the contract. Defendant insisted “that the contract was conditional, not only as to its performance, but as to its effect, and that the provisions ‘expected to arrive from China,’ and ‘no arrival, no sale,’ were, in effect, an agreement that if the goods referred to in the contract, when they arrived, were not of the quality prescribed, the contract was at an end and the plaintiff could recover nothing for its breach.” The court said: “Doubtless the effect of those provisions was to relieve the defendant from any breach of the contract occasioned by the non-arrival of the goods, provided it was not caused by fault of the seller.” (Our italics.) The court further said: “But the principle that if the goods specified and described in the contract do not arrive, a condition which terminates the contract exists and the seller is not liable, has no application where the contract contains either a warranty that the shipment has been made, or an express agreement upon the
The contract before us was one where the appellee contracted to sell and appellant to purchase a named quantity of arsenic from a lot appellee had “engaged for November shipment from Europe to New York, providing for arrival there early in December.” We cannot say that this provision was inadvisedly incorporated into the contract. It was a part of appellee’s proposal, and the pleaded facts show that appellant in accepting it relied on that provision.- An accepted proposal to sell a certain quantity of‘arsenic “from a lot we have engaged for November shipment, ’ ’ clearly imports a sale of goods then engaged for shipment, and the phrase “subject to arrival” does not impair the express agreement on the part of the seller that the goods were then engaged for shipment at the time named in the proposal.
The facts stated in the third paragraph of set-off show that appellee, at no time, ever engaged the goods for shipment ; that they were never shipped or offered for shipment to, or for the account of, appellee, and by reason of these facts alone the goods so purchased by appellant did not ar
In, the first and second paragraphs of set-off appellee’s breach is sáid to have been caused by the European seller’s violation of his contract with appellee. No fault for that breach is charged against appellee. No fault is laid at the door of appellee for the failure of the goods to arrive at New York. If it can be said that appellee’s proposal was unconditional, except for the loss of the goods at sea, the failure to ship the goods would constitute a breach of the contract, for which appellee would be liable to appellant for any damages occasioned thereby. And the fact that the breach was caused by a third person would be no defense. But, looking to the situation of the parties at the time the contract was made, we cannot close our eyes to the fact that appellee’s proposal informed appellant as to the nature of its title to the goods it proposed to sell. Appellee’s proposal clearly referred to goods it had engaged for shipment from Europe to New York, and not to goods then under its absolute control. The goods being merely “engaged” or contracted for shipment, it seems plain that the contingency of the European seller’s keeping his agreement with appellee was open and apparent to both parties, and that they must have entered into the contract with such contingency in view. It was a matter about which they had a right to agree. It was certain that the failure of the third person to keep his agreement and ship the goods would prevent the arrival of the particular lot appellee proposed to sell. These facts appearing, it would not be unreasonable to assume, as
The demurrers to the first and second paragraphs of set-off were properly sustained, and the demurrer to the third paragraph should have been overruled.
For the reasons stated, the judgment of the trial court is reversed, a new trial is ordered, and leave granted to each of the parties to„ amend its pleadings if it so desires.