33 Ind. App. 112 | Ind. Ct. App. | 1904
Appellees in this case recovered a judgment against appellants growing out of the alleged violation of a certain written contract. The material averments of the second paragraph of the complaint upon which the cause was tried are that appellees are partners, doing business in the cities of Boston and New York, and engaged in buying and selling different kinds of skins, and that appellants are likewise engaged in the same business in the city of Et. Wayne; that in the month of'March, 1898, appellees were informed by appellants that they had an extra fine lot of sheepskins which they desired to sell, and, pursuant to such notice, one of appellees called on appellants at their place of business in Et. Wayne, and appellees’ representative went with appellants to where the sheepskins were stored, and found such skins done up in large packages of a dozen or more, containing about seven hundred dozen, all different grades and quality; that appellants exhibited samples of the various skins to appellees’ agent, and then and there represented that all the skins proposed to be sold were what are known to the trade as “packers’ skins” and “fine packers’ skins;” that tjie term “packers’ skins” is used to designate skins removed from animals in large slaughter houses, and are free from defects, and are cleaner and better cured, and can be worked into better leather than the skins which were known as “country skins.”
It is further averred that appellees and appellants entered into a contract, a copy of which contract is made a part of the complaint, by which appellants agreed properly to pack and ship the skins to Boston, and stating the price which appellees were to pay for them; that while the negotiations were in progress, it was discovered that there
It is further averred that under such contract various skins were shipped to appellees at Boston, and that before the same were -received and examined appellees honored appellants’ draft of $2,812.44; that a few days after the receipt of the draft, upon examination of the goods shipped, they were found to be defective, and not according to sample, and thereupon appellees offered to return all the property so shipped, but appellants refused to accept or permit the return of the goods. It is further alleged that the shipped skins were so packed that the immediate discovery of the defects was impossible, and that upon investigation afterward it was discovered that appellants had stuffed the interior of the casks in which the skins were shipped with inferior sheepskins, not conforming to the samples shown appellees, nor to the quality designated in the contract; that the money advanced to appellants by the pay-
Appellants’ demurrer to the complaint was overruled, and the cause put at issue by appellants’ general denial to the complaint. There was a trial by jury, and a verdict and judgment in favor of appellees in the sum of $1,183.55. With the general verdict the jury returned answers to interrogatories. The errors assigned and discussed relate to the action of the trial court in overruling appellants’ demurrer to the complaint, in overruling their motion for a new trial, and in overruling their motion for judgment upon the special finding of facts notwithstanding the general verdict.
It is contended by counsel for appellants that this is an action to rescind a contract on the ground of fraud and deceit, and that the contract must be regarded as an entirety, and not severable; and that the complaint showing, as it does, that a part of the goods purchased under the contract were retained by appellees, and sold, renders the complaint insufficient; and that the complaint is insufficient for the further reason that the contract shows upon its face that the goods were delivered to appellees in Ft. Wayne, and that the inspection and the grading and the examination of the goods sold under the contract must, by the terms of the contract, be made at Ft. Wayne, and not at Boston. It is upon appellants’ theory and contention that the complaint is one to rescind and recover back money paid that we will proceed to examine the question of its sufficiency.
If the contract must be regarded as indivisible, appellants’ argument and objection to the complaint is well taken; but under the authorities we think the contract is one clearly severable. The contract in this case rests upon a consideration susceptible of distinct apportionment. It
The complaint, after averring specifically the defects’ in the hogskins shipped appellees under the contract, and that the quality shipped was inferior to the quality specified, avers, in substance, that the hogskins were not marketable in the condition they were in when so shipped by appellants and received by appellees. This averment, however imperfect it may be, was a sufficient averment that' the quality of the goods shipped, at the time and place of their shipment, was inferior to the quality specified in the contract. If appellants desired a more specific averment upon this subject, their remedy was by motion to
The next question presented by counsel arises upon the action of the trial court in admitting certain evidence in regard to the value of the goods in Boston at the time they were received. Mr. Stone, one of the appellees, was permitted to answer the following question, propounded to him by counsel: “Mr. Stone, you may state what the value per dozen would be or was in Boston at the time those goods were received — the A hogskins of the character and quality that were shown to you by Mr. Weil.” Appellants’ objection to this question Was that the market value of these goods in Boston was entirely immaterial, as the contract provided for their'delivery in Et. Wayne; and that the only evidence admissible to show the value of the goods would be evidence to prove the market value of the goods at the time they were delivered in Et. Wayne, and that the difference between that value and the contract price would be the measure of damages. This action, regarded as an action to rescind a part of the contract, which is the theory upon which counsel for appellants insists the action proceeds, results in making evidence of the value of the property returned immaterial. The contract, in so far as it relates to the sale of the hogskins, was rescinded, and the
Another cause stated in appellants’ motion for a new trial brings in question alleged misconduct on the part of the jury. Counsel insist that it was reversible error upon the part of the jurors in listening to comments made by members of the panel to the effect that appellants were Jews, and unworthy of belief, and that one of appellants’ witnesses had attempted to defraud an insurance company by burning his own property. The affidavits of three of the jurors appear in the record in support of this reason. The Supreme Court has in numerous cases held that a juror can not impeach his own verdict. Stanley v. Sutherland, 54 Ind. 339; Houk v. Allen, 126 Ind. 568, 11 L. R. A. 706; Barlow v. State, 2 Blackf. 114.
It appears from the whole record that the case Was fairly tried and determined.
Judgment affirmed.