179 Ind. 542 | Ind. | 1913
Appellant instituted this action against appellee by a complaint in one paragraph, to recover part of the purchase price paid on a contract of sale of an engine by appellee to appellant, and for damages for alleged breach of guaranty contained in the contract, a copy of which is incorporated in the complaint by way of exhibit. A demurrer to the complaint for want of facts sufficient to constitute a cause of action was overruled. Appellee answered in general denial, and a second paragraph by way of counterclaim, asking judgment for the balance of the purchase price of the engine. Appellant’s demurrer to the counterclaim for want of facts sufficient to constitute a defense or cause of action was overruled. Appellant’s reply to appellee’s counterclaim was in general denial, and a second
The error here assigned and not waived is on overruling appellant’s motion for a new trial. The contract in controversy arises over a proposition in writing dated September 8, 1906, to furnish “E. Reinhart & Co.”, to be shipped to Winnemucca, Nevada, Model Gasoline, Distillate, Alcohol Engine, Style C”, and setting out the specifications of the engine, among which are, “Horse Power developed at 275 R.P.M. 150 actual H. P.” and the following guaranty: “We guarantee engine to develop its full rated H.P. and to use not to exceed one gallon of fuel per H.P. per ten hours full work, when using either No. 1 or No. 2 Distillate. We to furnish expert to erect. * * * This engine to be delivered 60 days from date of receipt of order F. O. B. Peru, Ind. * * * For the sum of Pour Thousand and One Hundred Dollars $4100.00 (Freight to be dedueted from price.) Cash with order $1200.00. Cash when engine is delivered $1200.00. Cash within 30 days after engine is started by our expert, $1700.00 less freight on engine.” This proposal was followed by a written acceptance, September 18, 1906, by “E. Reinhart Inc. by M. Reinhart Secy.”
It appears by the evidence that E. Reinhart was secretary and treasurer of appellant corporation, and its agent in receiving and accepting the proposal. The contract price was
Note.—Reported in 101 N. E. 1007. See, also, under (1) 35 Cyc. 454; (2) 35 Cyc. 392, 454; (3) 35 Cyc. 95, 97; (4) 35 Cyc. 392, 395; (5) 9 Cyc. 245, 388; (6) 35 Cyc. 95, 412; (7) 31 Cyc. 358. As to breach of warranty in cases of sales of machinery, see 102 Am. St. 620. As to remedies of vendee for breach of warranty of quality, see 54 Am. Dec. 146. On the question of implied warranty of fitness of a particular article bought for special purpose, see 22 L. R. A. 187; 15 L. R. A. (N. S.) 855, 868 ; 31 L. R. A. (N. S.) 783 ; 34 L. R. A. (N. S.) 737. For express warranty as to quality excluding implied warranty as to quality, see 33 L. R. A. (N. S.) 501.