Huber Manufacturing Co. v. Wagner

78 N.E. 329, 167 Ind. 98, 1906 Ind. LEXIS 14

• Court: Indiana Supreme Court
• Decided: June 28, 1906
• Docket: No. 20,871
• Status: Published

Opinion

Monks, J.

Appellee brought this action to recover damages for breach of an alleged written contract for the purchase of a gasoline engine from the appellant. Appellant’s demurrer for want of. facts to the complaint was overruled. A jury trial resulted in a verdict and judgment in favor of appellee.

1. The action of the court in overruling the demurrer to the complaint is called in question by the assignment of errors. Appellee claims that appellant has waived said alleged error by failing to set out in its brief a copy or concise Statement of the written instrument sued upon, which was made a part of the complaint as required by §365 Burns 1901, §362 R. S. 1881. The written instrument is not set out to the extent required by the rules of court; but as appellant has made a good-faith effort to comply with the rules, and the parts, which appellant claims show the insufficiency of the complaint, are stated in the brief, the defects suggested will be disregarded.

It was alleged in the complaint that appellant, by its authorized general agent, C. S. Cooper, agreed to sell and deliver to appellee one fourteen-horse-power gasoline engine at Huntington or Warren, in consideration of which appellee agreed to execute and deliver to appellant his promissory notes for $250, said notes to be secured by chattel mortgage, and. to. deliver to appellant one steam engine j that appellant accepted and ratified said agreement, a copy of which is filed with and made a part of the complaint.

2. The writing sued upon purports to be and is a mere order or request to appellant for a “fourteen-horse-power gasoline engine.” Rear the bottom of the order, under the title “notice,” is the following: “This order is subject to the acceptance and approval of said company at its home office, and when so approved and accepted is a binding contract which no person has authority to modify or vary in any respect, or to waive any of its conditions except in writing approved by the management at the home office, and any attempt otherwise to change any of the terms or waive any of the conditions of the warranty will not be binding on the company.” The only signature to the order is: “C. S. Cooper, agent. The Huber Company.” According to its terms said order was not a contract, but a mere request to appellant, which, according to its terms, could only become a contract when accepted by the appellant at the home office. Said order was not signed by appellee. It was not his order, but, as signed, was the order of “C. S. Cooper, agent. The Huber Company.” Said order, even if accepted and ratified by appellant, as alleged in the complaint, would not be a contract with appellee, as alleged in the complaint.

3. It is evident that the allegations of the complaint in regard to the instrument sued upon vary from the provisions of said instrument. In such case the exhibit controls, and such allegations will be disregarded. Harrison Bldg., etc., Co. v. Lackey (1897), 149 Ind. 10, 14, and cases cited.

Disregarding the allegations of the complaint which vary from the provisions of the instrument sued upon, it is evident that the court erred in overruling appellant’s demurrer thereto.

Other questions are argued in the briefs, but the conclusion we have reached renders their determination unnecessary.

Judgment reversed, with an instruction*!!) sustain the demurrer to the complaint.