40 Ind. App. 631 | Ind. Ct. App. | 1907
The appellant sued the appellees in the court below for the purchase price of a channeling machine alleged to have been sold by appellant to appellees. The suit was based on a written contract, which reads as follows:
"This agreement entered into June 6, 1902, between the Sullivan Machinery Company, of Chicago, Illinois, a.*d Claremont, New Hampshire, and the Monarch*633 Stone Company, of Bloomington, Indiana, witnesseth: The Sullivan Machinery Company agrees to deliver to the Monarch Stone Company, f. o. b. cars Claremont, New Hampshire, not later than June 13, 1902, one new Y Sullivan channeling machine, with latest improvements, and with all equipments as per catalogue No. 80, excepting one set of drills is wanted cutting to the depth of nine feet, instead of two set drills cutting to depth of six feet. Price $2,200. Said Sullivan Machinery Com- „ pany guarantees this channeling machine to be equal in design, material, and workmanship to the recent machines shipped into the Indiana district, and to replace any part or parts of the machine breaking, due to defective material or poor workmanship, within one year from the date of this agreement. The Sullivan Machinery Company further agrees to assume the freight on the above material from Claremont, New Hampshire, to Clear Creek station, Indiana. Said Monarch Stone Company agrees to pay said Sullivan Machinery Company for the above machinery on the following terms: $2,200 less two per cent if paid within thirty days after the arrival of machine at Clear Creek station, Indiana, or by four equal notes of $550, payable thirty, sixty, ninety, and one hundred and twenty days, respectively, after arrival of machine at Clear Creek station, Indiana, said notes to bear interest at six per cent. This contract is contingent upon strikes, fires, accident, or other delays unavoidable or beyond control.”
This contract is alleged to have been executed by the plaintiff and by the defendants under the name and style of the Monarch Stone Company. The defendants answered in eleven paragraphs, the fourth of which is as follows: ‘ ‘ Said defendants, for further joint and separate answer herein, say that during the year 1902 said defendants desired to purchase a stone channeling machine, and that said defendants were each called upon and solicited by said plaintiff’s agent to purchase a Sullivan channeling machine; that said plaintiff’s agent represented to said defendants and to each of them that said Sullivan channeling machine was the best channeling machine on the market, would cut 700 lineal feet of stone each day when continuously operated, was economical in operation, and he would warrant and guar
The ninth paragraph was pleaded as a cross-complaint, and averred that plaintiff’s agent called upon and solicited defendants to purchase a Sullivan channeling machine, and represented to each of them that the Sullivan channeling machine was the best machine on the market, “would cut 700 lineal feet of stone each day when continuously operated, was economical in operation, and he would warrant and guarantee these facts to be true; that, relying on these warranties, they authorized plaintiff’s agent to deliver to them at their quarry one Sullivan channeling machine, and that the machine, as purchased, was not the best machine on the market; that it was not properly built; that it was so constructed as to be extravagant in the use of steam, and of insufficient working ability; that the auxiliary valve leaked live steam into the exhaust; that the auxiliary valve failed to produce proper action of the main valve, or to give it full stroke; that it caused the working ability of the machine to •be greatly impaired, and lessens its cutting ability; that it had at no time cut 700 lineal feet of stone per day; that in operating said machine the defendants have been compelled to pay the same as if said machine cut 700 feet per day.” The tenth paragraph of answer avers the same facts regarding the representations and warranties of the plaintiff’s agent, the authority given the plaintiff’s agent to deliver to defendants a Sullivan channeling machine at the quarry,
Por these errors the judgment of the court below is reversed: