Maxwell Implement Co. v. Fitzgerald

DAUSMAN, C. J. (after making the foregoing statement) . *211 *210 It is urged with much earnestness that the court erred *211 in overruling the demurrer to each paragraph of the answer. However, it affirmatively appears from the record that the verdict rests entirely upon the counterclaim. Therefore, the action of the court in overruling the demurrer to either paragraph of the answer would not constitute reversible error, even if erroneous; and we need not consider the sufficiency of either of those paragraphs. Counsel also contend that the court erred in overruling the demurrer to the counterclaim. The contract provides that if “the machine fails to work properly, the purchaser shall immediately give written notice” thereof. The averment in the counterclaim is that the- defendant “notified the plaintiff and that thereupon one Leonard Maxwell, an officer of the company, responded within two days after the notice and endeavored to operate the tractor.” It clearly appears from the contract that the purpose of the notice to be given by the buyer to the seller was to give the seller an opportunity to send a competent man to put the tractor in good order. There can be no doubt that the seller could waive the requirement of the contract that the notice of the failure of the tractor to work properly should be given in writing; since that provision of the contract is for the benefit of the seller. On the averment of the counterclaim the presumption arises that the notice was oral. Now, if the counterclaim contained no other averment on this feature, we would have a different question. But that pleading contains the further averment that, on receipt of the notice, the seller promptly responded and by one of its officers endeavored to operate the tractor and to put it in condition to successfully perform the work for which it was designed. The seller might have ignored the oral notice and stood upon the strict letter of the contract; but that it did not do. The courts generally recognize and en *212 force the rule that where the buyer gives notice of defect in a machine purchased, which notice is not in accordance with the stipulation in the contract, and the seller promptly responds to the notice and attempts to remedy the defect, as required by his contract, he thereby waives the provision of the contract as to the time and manner in which the notice should be given. Campbell v . Wray (1892), 5 Ind. App, 155, 31 N. E. 824; Springfield Engine, etc., Co. v. Kennedy (1893), 7 Ind. App. 502, 34 N. E. 856; J. F. Seiberling & Co. v. Newlon (1896), 16 Ind. App. 374, 43 N. E. 151; Huber Mfg. Co. v. Busey (1896), 16 Ind. App. 410, 43 N. E. 967; Aultman &. Co. v. Richardson. (1898), 21 Ind. App. 211, 52 N. E. 86; Siebe v. Heilman Machine Works (1906), 38 Ind. App. 37, 77 N. E. 300; Daugherty v. Advance-Rumley, etc., Co. (1920), 190 Iowa 424, 180 N. W. 277; Emmerich v. Joliet, etc., Co. (1917), 206 Ill. App. 415; Ditto v. International, etc., Co. (1921), 105 Nebr. 544, 181 N. W. 544; Palmer v. Reeves &. Co. (1909), 139 Mo. App. 473, 122 S. W. 1119; Monroe v. Cowne (1922), 133 Va. 181, 112 S. E. 848; Fairbanks, etc., Co. v. Nelson (1914), 217 Fed. 218, 133 C. C. A. 212. The counterclaim sufficiently avers a waiver of the stipulation in the contract with respect to the notice. It is contended that the averments of the counterclaim do not show a compliance with the provision of the contract which stipulates that, “If the machine cannot be made to work well, the purchaser shall immediately return it to the seller.” The averment on that feature is.that the purchaser tendered the machine back to the seller and that the seller refused to accept it. “Return,” as used in the contract, means to bring, carry, or send back. Webster’s Dictionary. “Tender” is usually used in connection with an offer to pay money; but the word is properly used in connection with an offer of property other than *213 money. Mitchell v. Merrill (1827), 2 Blackf. (Ind.) 87, 18 Am. Dec. 128. We are of the opinion that the averment that the buyer tendered the machine back to the seller and that the seller refused to accept it, must be held good, especially after trial. We need not discuss in detail the other specifications in the memorandum. It is sufficient to say that some of them do not go to the merits of the controversy ;■ some might properly have been presented by a motion to make definite and certain; and none is of such a character as to render the counterclaim fatally defective. Under the assignment that the court erred in overruling the motion for a new trial, the appellant’s main contention is that it was erroneously deprived of an important right — the right to open and close. The reasoning on this point is that the closing argument is a powerful weapon in the hands of him who has the privilege of wielding it, and that the plaintiff was disadvantaged by having that privilege erroneously conferred upon its adversary. Whether or not the contention is inherently meritorious we will not attempt to determine. The Code prescribes the manner in which a jury trial shall be conducted. It prescribes the order in which the evidence shall be presented, unless the court for special reasons shall otherwise direct. §584 Burns 1926, §558 Burns 1914. It provides that the parties may argue the case to the jury or submit it to the jury without argument; and that, “In the argument, the party having the burden of the issue shall have the opening and the closing.” §588 Burns 1926, §562 Burns 1914. The appellant concedes that the defendant, by virtue of his pleadings, assumed the burden of all the issues except as to the value of the attorney’s fee. The contention is that, as to the amount of the attorney’s fee, the burden was on the plaintiff. The averment in the complaint is that “a reasonable attorneys’ fee for plaintiff’s *214 attorneys is $250.” That averment stands wholly uncontroverted. Shall it then be taken as true? The Code provides: “Every material allegation of the complaint not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall, for the purpose of the action,'be taken as true;- * * * Allegations of value or amount of damage shall not be considered as true by the failure to controvert them.” §410 Bums 1926, §392 Burns 1914. It is clear that the averment must be taken as true unless it is an averment of value. The trial court adopted the view that the truth of the averment stood admitted, and peremptorily instructed the jurors that if they found for the plaintiff, they should include in their verdict $250 as an attorney’s fee. The court may have erred in that instruction (See McCloskey, Admr., v. Davis, Admx. [1893], 8 Ind. App. 190; Elliott, App. Proc. §671); but, right or wrong, the instruction stands unchallenged. Indeed, the appellant is in no position to challenge an instruction so decidedly favorable to it. By that instruction, any controversy which may have arisen concerning .an attorney’s fee was completely eliminated and the error, if any, in awarding the opening and closing to the defendant was rendered harmless. The appellant has attempted to present other questions under the assignment that the court erred in overruling the motion for a new trial; but all of them depend upon the evidence for their determination, and in the absence of the evidence they Query: Is the transcript sufficient to present any cannot be considered. question for the consideration of this court? Judgment affirmed. Enloe, J., dissents. McMahan, J., not participating.