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21 Ind. App. 211

Aultman & Co. v. Richardson

Indiana Court of Appeals

Decided November 30, 1898

Indiana Court of Appeals · decided 1898-11-30

<p>Replevin. — Sales.—Breach of Warranty. — Special Verdict.- — In an action in replevin to recover an engine seized by tbe seller upon default of payment in compliance with the terms of a mortgage thereon, a special verdict showing a breach of warranty, which fails to show any damages resulting from such breach, is not sufficient to sustain a judgment for plaintiff, p. 215.</p> <p>Sale. — Warranty.—Notice.—Waiver.—A .contract of sale and warranty provided for written notice to be sent by registered letter to the vendor within a specified time in the event the machine sold should not fulfill the terms of the warranty. On a breach of the warranty a notice was sent, but not by registered letter. The notice was received and acted upon. Held, that by receiving and acting upon the notice the vendor waived the requirement for registering. pp. 215, 216.</p> <p>Sales. — Defective Machine. — Breach of Warranty. — Where a machine which failed to fulfill the warranty made by the vendor is retained and settled for by the vendee upon the promise of the vendor to remedy the defect, the vendee does not lose his rights under the .warranty, p. 217.</p>

Relies on Stix v. Sadler · Cincinnati, Indianapolis, St. Louis & Chicago Railway Co. v. Gaines · Kehr v. Hall

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1898-11-30

How this case has been cited

Cited by 5 later decisions — most recently March 1925

5 state decisions

201898190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Concurring Opinion.

Henley, J.

¶2The conclusion reached by the majority of the court in reversing this cause meets with my approval, but I am strongly of the opinion that the lower court should, in this cause, be directed to sustain the motion of appellant for judgment upon the special verdict. The special verdict fails to show that appellee was in any way damaged by the alleged breach of warranty, and upon this ground it is held that the verdict is insufficient to sustain a judgment for any amount in favor of appellees, and for the same reason I think the motion for judgment upon the special verdict in favor of appellant ought to have been sustained. It seems to me that the correct practice in all cases where a special verdict is returned would insure to one party or to the other to the ac*218tion a judgment upon the facts found, unless the verdict was so defective as to be subject to attack by a motion for a venire de novo. This being the second appeal to this court in this cause, and it being the policy of the courts of last resort to end litigation, and the facts being before the court upon which a final judgment could be ordered, I am of the opinion that it is the duty of this court to end the litigation by directing, a judgment in appellant’s favor. Kehr v. Hall, 117 Ind. 405; Meeker v. Shanks, 112 Ind. 207; Stix v. Sadler, 109 Ind. 254; Cincinnati, etc., R. Co. v. Gaines, 104 Ind. 526, 54 Am. Rep. 334.

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