Moran, J.
This was an action by appellant to enforce the collection of eight promissory notes, aggregating $3,865, against appellees, executed by them tcf The Russell & Company, a corporation of Massillon, Ohio, and‘held by appellant by indorsement. The defense interposed to the collection of the notes was predicated upon two affirmative paragraphs of answer addressed to the complaint, which consisted of eight paragraphs, each being based upon one of said notes respectively. It is admitted by both paragraphs of answer that the notes are due and unpaid, and were executed by appellees, but that they were executed in consideration of the sale and delivery to appellees by The Russell & Company of a certain device, consisting of a traction engine and eight wagons, which were intended to constitute a train for the purpose of hauling gravel in the construction of gravel roads. One of said paragraphs proceeds upon the theory of a breach of warranty and the other upon fraud in the sale of the above [295]*295described property. Upon issue being joined, a trial was had by a jury, which returned a verdict in favor of appellees, together with answers to certain interrogatories. There was judgment upon the verdict that appellant take nothing byits complaint and that appellees recover costs. From this judgment an appeal has been taken. Errors relied upon for reversal are: Overruling the demurrer of appellant to each paragraph of answer; overruling appellant’s motions in arrest of judgment and for a'new trial.
Appellees assert that many of the errors relied upon by appellant are not properly presented and are therefore obviated under the rules of appellate procedure. As to such, we shall direct our attention at this time.
It is insisted by appellees that no error can be predicated upon the giving or refusing to give instructions for the reason that the record fails to show that the instructions were filed and exceptions properly reserved thereto. The state of the record as originally filed in this court, and at the time appellee filed his brief, would preclude an examination of the instructions for the reasons above assigned. Since that time, however, Cause No. 9273 of this court has been consolidated with this cause, which brings before us a nunc pro tunc entry showing the filing of the instructions and the reserving of the proper exceptions to the same. To the granting of the nunc pro tunc entry appellees in this cause duly excepted, and present for consideration the question as to whether the memorandum made on the bench docket by the trial court originally in reference to instructing the jury was sufficient upon which to grant appellant’s application for a nunc pro tunc entry.
[296]*2961. [295]*295It may be stated as a general rule that a nunc pro tunc entry can be made only where there is [296]*296some memorial or other minute of the transaction in the case from which what actually took place in the prior proceeding can be clearly ascertained or known; and parol evidence alone is not sufficient to authorize a nunc pro tunc entry or to change a record after the proceeding has ceased to be in fieri, and after the term at which the record was made. Williams v. Henderson (1883), 90 Ind. 577; Schoonover v. Reed (1879), 65 Ind. 313; Boyd v. Schott (1898), 152 Ind. 161, 52 N. E. 752.
2. 3. After an examination of the memorandum made by the trial court, and the facts and circumstances offered in evidence throwing light thereon, we are of the opinion, in view of the holdings, that the memorandum made by the trial court authorizing the granting of the application for a nunc pro tunc entry was sufficient, and that the instructions must be regarded as properly filed and exceptions duly reserved. The criticism offered as to the giving and refusing to give instructions is very general and by abstract propositions of law, except as to instructions Nos. 11 and 12, given by the court of its own. motion; and while we would be warranted in considering only instructions Nos. 11 and 12, as aforesaid, we have, however, examined each instruction given and those requested to be given and refused, in connection with our examination of the objections raised to instructions Nos. 11 and 12, and are fully convinced that when all the instructions given to the jury are considered as a whole, which they must be, there was no reversible error in the giving of either instruction No. 11 or 12, nor in refusing to give either 'of the instructions tendered by appellant. Baltimore, etc., R. Co. v. Trustees Tunnelton Lodge, etc. (1911), 50 Ind. App. 220, 98 N. E. 141; Indianapolis, etc., [297]*297Transit Co. v. Reeder (1912), 51 Ind. App. 533, 100 N. E. 101.
4. Appellant in its brief, under “Points and Authorities,” has directed no proposition to the overruling of the motion in arrest of judgment, nor is the same otherwise discussed. Hence the alleged error is not before us for consideration. Buffkin v. State (1914), 182 Ind. 204, 106 N. E. 362; Nashville, etc., R. Co. v. Johnson (1915), 60 Ind. App. 416, 106 N. E. 414; Smith v. Finney (1914), 56 Ind. App. 707, 104 N. E. 887; Michael v. State (1912), 178 Ind. 676, 99 N. E. 788; Anderson v. State (1913), 179 Ind. 590, 101 N. E. 84.
5. In its motion for a new trial many causes are assigned by appellant upon the admission and rejection of evidence. However, the only error to. which a proposition is addressed under “Points and Authorities” is. that the court refused appellant permission to have the witness William S. Nees answer the following question on cross-examination: “The interest was thrown off in consideration of the execution of the new notes, is that right?” There were two sets of notes involved in the transaction. The first set of notes were taken up by the execution of what was known*as the new notes. Just preceding the above question, the witness Nees did answer that, when the new notes were executed and the old ones taken up, the company did not charge appellee with the interest that had accrued on the old notes. This in substance covered appellant’s inquiry. The extent to which a cross-examination may be carried is largely within the discretion of the trial court. No error was committed in sustaining the objection to the question thus propounded. Shields v. State (1897), 149 Ind. 395, 49 N. E. 351; Davis v. Coblens (1899), 174 U. S. 719, 19 Sup. Ct. 832, 43 L. Ed. 1147; Ledford v. Led[298]*298ford (1884), 95 Ind. 283; Citizens Street R. Co. v. Heath (1902), 29 Ind. App. 395, 62 N. E. 107.
6. Appellant criticizes the trial court for expressing his opinion to one of the jurors, after the return of the verdict, that a correct result had been reached. It is the duty — much less a commendable quality- — ■ of a trial court to keep himself in such a frame of mind that he can pass upon all matters that come before him, or are likely to come before him, in an unbiased manner. This matter is sought to be presented’ as a cause for a new trial, although it occurred after the return of the verdict by the jury.
Free access — add to your briefcase to read the full text and ask questions with AI
Moran, J.
This was an action by appellant to enforce the collection of eight promissory notes, aggregating $3,865, against appellees, executed by them tcf The Russell & Company, a corporation of Massillon, Ohio, and‘held by appellant by indorsement. The defense interposed to the collection of the notes was predicated upon two affirmative paragraphs of answer addressed to the complaint, which consisted of eight paragraphs, each being based upon one of said notes respectively. It is admitted by both paragraphs of answer that the notes are due and unpaid, and were executed by appellees, but that they were executed in consideration of the sale and delivery to appellees by The Russell & Company of a certain device, consisting of a traction engine and eight wagons, which were intended to constitute a train for the purpose of hauling gravel in the construction of gravel roads. One of said paragraphs proceeds upon the theory of a breach of warranty and the other upon fraud in the sale of the above [295]*295described property. Upon issue being joined, a trial was had by a jury, which returned a verdict in favor of appellees, together with answers to certain interrogatories. There was judgment upon the verdict that appellant take nothing byits complaint and that appellees recover costs. From this judgment an appeal has been taken. Errors relied upon for reversal are: Overruling the demurrer of appellant to each paragraph of answer; overruling appellant’s motions in arrest of judgment and for a'new trial.
Appellees assert that many of the errors relied upon by appellant are not properly presented and are therefore obviated under the rules of appellate procedure. As to such, we shall direct our attention at this time.
It is insisted by appellees that no error can be predicated upon the giving or refusing to give instructions for the reason that the record fails to show that the instructions were filed and exceptions properly reserved thereto. The state of the record as originally filed in this court, and at the time appellee filed his brief, would preclude an examination of the instructions for the reasons above assigned. Since that time, however, Cause No. 9273 of this court has been consolidated with this cause, which brings before us a nunc pro tunc entry showing the filing of the instructions and the reserving of the proper exceptions to the same. To the granting of the nunc pro tunc entry appellees in this cause duly excepted, and present for consideration the question as to whether the memorandum made on the bench docket by the trial court originally in reference to instructing the jury was sufficient upon which to grant appellant’s application for a nunc pro tunc entry.
[296]*2961. [295]*295It may be stated as a general rule that a nunc pro tunc entry can be made only where there is [296]*296some memorial or other minute of the transaction in the case from which what actually took place in the prior proceeding can be clearly ascertained or known; and parol evidence alone is not sufficient to authorize a nunc pro tunc entry or to change a record after the proceeding has ceased to be in fieri, and after the term at which the record was made. Williams v. Henderson (1883), 90 Ind. 577; Schoonover v. Reed (1879), 65 Ind. 313; Boyd v. Schott (1898), 152 Ind. 161, 52 N. E. 752.
2. 3. After an examination of the memorandum made by the trial court, and the facts and circumstances offered in evidence throwing light thereon, we are of the opinion, in view of the holdings, that the memorandum made by the trial court authorizing the granting of the application for a nunc pro tunc entry was sufficient, and that the instructions must be regarded as properly filed and exceptions duly reserved. The criticism offered as to the giving and refusing to give instructions is very general and by abstract propositions of law, except as to instructions Nos. 11 and 12, given by the court of its own. motion; and while we would be warranted in considering only instructions Nos. 11 and 12, as aforesaid, we have, however, examined each instruction given and those requested to be given and refused, in connection with our examination of the objections raised to instructions Nos. 11 and 12, and are fully convinced that when all the instructions given to the jury are considered as a whole, which they must be, there was no reversible error in the giving of either instruction No. 11 or 12, nor in refusing to give either 'of the instructions tendered by appellant. Baltimore, etc., R. Co. v. Trustees Tunnelton Lodge, etc. (1911), 50 Ind. App. 220, 98 N. E. 141; Indianapolis, etc., [297]*297Transit Co. v. Reeder (1912), 51 Ind. App. 533, 100 N. E. 101.
4. Appellant in its brief, under “Points and Authorities,” has directed no proposition to the overruling of the motion in arrest of judgment, nor is the same otherwise discussed. Hence the alleged error is not before us for consideration. Buffkin v. State (1914), 182 Ind. 204, 106 N. E. 362; Nashville, etc., R. Co. v. Johnson (1915), 60 Ind. App. 416, 106 N. E. 414; Smith v. Finney (1914), 56 Ind. App. 707, 104 N. E. 887; Michael v. State (1912), 178 Ind. 676, 99 N. E. 788; Anderson v. State (1913), 179 Ind. 590, 101 N. E. 84.
5. In its motion for a new trial many causes are assigned by appellant upon the admission and rejection of evidence. However, the only error to. which a proposition is addressed under “Points and Authorities” is. that the court refused appellant permission to have the witness William S. Nees answer the following question on cross-examination: “The interest was thrown off in consideration of the execution of the new notes, is that right?” There were two sets of notes involved in the transaction. The first set of notes were taken up by the execution of what was known*as the new notes. Just preceding the above question, the witness Nees did answer that, when the new notes were executed and the old ones taken up, the company did not charge appellee with the interest that had accrued on the old notes. This in substance covered appellant’s inquiry. The extent to which a cross-examination may be carried is largely within the discretion of the trial court. No error was committed in sustaining the objection to the question thus propounded. Shields v. State (1897), 149 Ind. 395, 49 N. E. 351; Davis v. Coblens (1899), 174 U. S. 719, 19 Sup. Ct. 832, 43 L. Ed. 1147; Ledford v. Led[298]*298ford (1884), 95 Ind. 283; Citizens Street R. Co. v. Heath (1902), 29 Ind. App. 395, 62 N. E. 107.
6. Appellant criticizes the trial court for expressing his opinion to one of the jurors, after the return of the verdict, that a correct result had been reached. It is the duty — much less a commendable quality- — ■ of a trial court to keep himself in such a frame of mind that he can pass upon all matters that come before him, or are likely to come before him, in an unbiased manner. This matter is sought to be presented’ as a cause for a new trial, although it occurred after the return of the verdict by the jury. As to what questions' may be presented by the motion for a new trial, it may be stated as a general rule, that “if the ruling is connected with the trial procedure, and is not made upon the pleadings, or not made upon independent questions not relating to the trial, or is not made upon the verdict, or upon answers of the jury to interrogatories, or does not affect the form of the judgment or decree, it should be specified as a cause or reason for a new trial.” Elliott’s App. Proc. §350. The conduct of the trial judge complained of by appellant does not come within the general rule as a cause for a new trial. It is only errors that can be rectified by the granting of the motion for a new trial that can be assigned as causes therefor.
7 It is contended by appellant that the trial judge was guilty of misconduct in leaving the court room during the argument of counsel. As to this irregularity, if it may be termed such, the bill of exceptions discloses that after the evidence had been submitted and counsel for appellees was* making an argument to the jury, the presiding judge voluntarily absented himself on one occasion for five minutes and on another for ten minutes, for the purpose of dictating instructions to the court re[299]*299porter, who occupied a room that was separated by two doors from the court room where the trial was being conducted and where he could not hear or see what was going on in the court room proper. The bill of exceptions further discloses that there were no objections made or exceptions taken on behalf of counsel for appellant at the time.
There are authorities to the effect that the judge is such an essential part of the court that his absence for any length of time, without suspending the trial, will vitiate the proceedings, whether objections be made at the time or not; on the other hand, there are jurisdictions, of which this state is among the number, which hold that misconduct of anyone connected with the trial not affecting the jurisdiction of the court when acquiesced in without objection is waived, even though it be of such character that might otherwise vitiate the verdict; however, acts of misconduct on the part of the trial judge or anyone connected with the trial might be of such a nature as the policy of the law would forbid any inquiry as to whether' harm resulted or not. The following authorities are instructive as to the above propositions. Starr v. United States (1903), 4 Ind. T. 550, 76 S. W. 105; Thompson v. People (1893), 144 Ill. 378, 32 N. E. 968; Meredeth v. People (1877), 84 Ill. 479; Horne v. Rogers (1900), 110 Ga. 362, 35 S. E. 715, 49 L. R. A. 176; Ellerbe v. State (1897), 75 Miss. 522, 22 So. 950, 41 L. R. A. 569; O'Brien v. People (1892), 17 Colo. 561, 31 Pac. 230; State of Iowa v. Hammer (1902), 116 Iowa, 284, 89 N. W. 1083; Waterman v. State (1888), 116 Ind. 51, 18 N. E. 63; Kruse v. St. Louis, etc., R. Co. (1911), 97 Ark. 137, 133 S. W. 841; State of Iowa v. Carnagy (1898), 106 Iowa 483, 76 N. W. 805; Henning v. State (1886), 106 Ind. 386, 6 N. E. 803, 7 N. E. 4, 55 Am. Rep. 756; Coleman v. State (1887), 111 [300]*300Ind. 563, 13 N. E. 100; Danes v. Pearson (1893), 6 Ind. App. 465, 33 N. E. 976.
Appellant permitted the act on the part of the presiding judge to be repeated without objection, and his absence was nothing more than momentary, and then for the performance of services connected with the trial. In his absence, there does not appear from the record to have been any objections made on the part of appellant to any remarks that were made by appellees’ counsel in his argument, nor is there anything to show that the absence of the trial judge was in any manner prejudicial to appellant. No doubt a word to the bailiff that the trial judge’s presence was desired Would have brought him back to the bench immediately. The better practice requires the visible presence of a presiding judge; that he be within hearing distance at all times diming the actual progress of the trial, but the facts disclosed by the record in this case show no .available error on account of the misconduct of the presiding judge in this particular.
8. This leaves for consideration the sufficiency of the answers, which are very voluminous and it would unnecessarily incumber the opinion to set the same out in full. We will refer to the parts thereof that are important to a discussion of the law applicable to the ruling on the demurrer. The paragraph of answer based upon a breach of warranty discloses that at the time The Russell & Company sold to appellees the engine and wagons it was engaged in manufacturing outfits of this character;that its agent, who soldtheoutfit to appellees, knew thattheywereundereontractto build numerous gravel roads, where the same were to be built, the character of the highways over which the engine and wagons were to be operated, as well as the gravel pits from ’where the gravel was [301]*301to be procured; and that appellees were without any knowledge of the outfit, except the information obtained from the agent of the company. It is further disclosed that appellees attempted to use the outfit as directed, but that it could not be used for the purpose for which it was purchased; that the engine could not draw the wagons when loaded, and the wagons could not be dumped and would clog; that the outfit was worthless and the company was so notified, and that it was at their disposal, and that the notes executed therefor would not be paid. The negotiations and sale, so far as this paragraph of answer is concerned, were oral, except the consideration that passed, which was the notes in suit, and, in its final analysis, the answer shows no more than a detailed description of the outfit, how it could be used, and that the company manufactured the same and were familiar with the purpose for which it was sold and that it was worthless. The negotiations did not go to the reasonable fitness of the outfit for the purpose for which it was purchased, and this quality not being included within the provisions expressed in the transaction, the same were implied by the law, as the law is a silent factor and enters into every contract. What is implied in an express contract is as much a part of it as,what is expressed. Hudson Canal Co. v. Pennsylvania Coal Co. (1868), 8 Wall. 276, 19 L. Ed. 349; Jordan v. Indianapolis Water Co. (1902), 159 Ind. 337, 64 N. E. 680.
The legal proposition that when the expressed terms of a contract, relating to the purchase of machinery manufactured by the seller, do not relate to obligations created by an implied warranty, the same is not excluded, is fully covered by the Penn, etc., Glass Co. v. De LaVergne Mach. Co. (1914), [302]*30258 Ind. App. 333, 106 N. E. 722, where the authorities are collected and carefully analyzed.
In the light of the authorities, there was an implied warranty that the outfit purchased by appellees was fit for the purpose for which it was purchased, and being entirely worthless, there was a failure of consideration by reason of the breach of implied warranty. This paragraph of answer stated a defense to the complaint and the demurrer was properly overruled.
The paragraph of answer based upon fraud discloses briefly that The Russell & Company of Massillon, Ohio, sold to appellees a traction engine and eight wagons, which they manufactured for the purpose of hauling gravel, in consideration of $4,365; that appellees knew nothing about the merits of the outfit, which fact the company well knew, and with the idea of defrauding appellees, the company procured their local agent in Hamilton County, Indiana, whom they knew was a close friend of appellees, and upon whom they knew appellees would rely, to represent to them that The Russell & Company manufactured an outfit, consisting of an engine and a series of wagons, which appellees could use in their business to a great financial advantage; that each wagon would hold six cubic yards of gravel, and that the engine would draw eight wagons in the form of a train; appellees believed the representations made and after visiting the factory where they saw the. outfit purchased, they had the same delivered to them, and in May, 1910, appellees attempted to use the outfit but could not; that the engine was unable to draw the wagons or any number of them; an effort was made by the company to. operate the same, but it could not do so; the company found that it could not be made to do the work for which it was purchased, [303]*303thereupon through its local agent, upon whom they knew appellees would rely, they informed appellees that the company would make for them a lighter wagon, which would hold four cubic yards of gravel, and that the engine in their possession could draw eight of such wagons filled with gravel; and relying upon the representations, appellees agreed to exchange the six wagons for the eight lighter wagons, which the company agreed to manufacture for them;, at the time of entering into the contract for the exchange of wagons, appellees were' furnished a blueprint in reference to the new wagons, which they knew nothing about, but relied upon representations made to them, and new notes were executed and the old notes, which were executed for the first outfit, except a $500 note which had been paid, were surrendered. The new wagons were delivered in September, 1910, and appellees attempted to operate the same but could not — they were insufficient in strength; they could not haul the amount of gravel represented, nor could the gravel be dumped therefrom by the appliances for that purpose, as represented. The companymade an effort to operate the outfit, but failed. The representations made by the company as to the outfit being a success were in reckless disregard as to whether the representations were true or false, and were made for the purpose of selling the outfit to appellees, and that the engine and wagons were worthless and the notes in suit were executed in consideration therefor.
9. [304]*30410. [303]*303It may be stated as a general proposition that a representation to be fraudulent in law must be made concerning a material fact, upon which the party to whom it is made has a right to, and does, rely, and it must be one that misleads him to his injury; but mere expressions of opinion concerning the value, utility, future use [304]*304and the like of property, do not in law constitute actionable fraud, though they be false; but where a party professing to have knowledge falsely represents a thing to exist and makes the representation for the purpose of procuring an undue advantage over a person, with whom he is contracting and who is without knowledge and relies thereon, he is guilty of fraud, although it may not appear that he knew that his statements were false. Conant v. National State Bank (1889), 121 Ind. 323, 22 N. E. 250; Smith v. Parker (1897), 148 Ind. 127, 45 N. E. 770; Frenzel v. Miller (1871), 37 Ind. 1, 10 Am. Rep. 62; Hartford Life Ins. Co. v. Hope (1907), 40 Ind. App. 354, 81 N. E. 595, 1088; Timmis v. Wade (1892), 5 Ind. App. 139, 31 N. E. 827; Hunter v. McLaughlin (1873), 43 Ind. 38; Gatling v. Newell (1857), 9 Ind. 572; Hedin v. Minneapolis Medical, etc., Institute (1895), 62 Minn. 146, 64 N. W. 158, 35 L. R. A. 417, 54 Am. St. 628.
The gravamen of the charge of fraud in the answer is that the company that manufactured and sold the' articles of property to appellees made representations to them with a reckless disregard for the truth, and that appellees were without any knowledge as to the matter under consideration, and relied thereon and were damaged thereby.
In Conant v. National State Bank, supra, the sellers represented that they were experts in flour mill machinery; that they had a peculiar knowledge in relation to flour mill machinery, and the purchasers were ignorant of such matters, and that the sellers being experts, and with an intent to deceive the purchasers and to take advantage of their want of knowledge, represented that the machinery was adapted to and in all respects sufficient, and had a capacity of one hundred barrels per day, to maké three grades of flour economically and [305]*305profitably. This was held to be no more than the expression of an opinion and commendation relating entirely to the work the machinery could do in the future and the manner in which it would do the same.
11. The property for which the notes in suit were executed it will be remembered was not the property first purchased from The Russell & Company, but property received in exchange therefor. The new wagons contracted to be constructed were similar in mechanism to the wagons first purchased, and which were in appellee’s possession, together with the engine, which was to make up a part of the new outfit, from May, 1910, to September of the same year. So as to the engine that was to make up a part of the new outfit appellees were not strangers, and as to the new wagons that were to take the place of the old ones they were not entirely without knowledge. The new wagons at the time of entering into the contract were not inexistence; the company agreed to construct them for appellees in accordance with a blueprint, which was placed in their hands at the time of entering into the agreement to construct the same, and to take back the first wagons and surrender the notes executed therefor. Without extending the discussion further the representations made, as alleged, were not about an existing fact, but were about what the wagons would do when constructed and operated as directed, which falls within the class of representations that is termed by the law as the expression of an opinion; and the allegations of the answer are not such as to take the case out of the general rule that statements of matters of opinion in the nature of predictions cannot, although untrue, constitute a fraudulent representation. Conant [306]*306v. National State Bank, supra; Frenzel v. Miller, supra; Kimball v. Bangs (1887), 144 Mass. 321, 11 N. E. 113; Hunter v. McLaughlin, supra; Williamson v. Holt (1908), 147 N. C. 515, 61 S. E. 384, 17 L. R. A. (N. S.) 240; Elliott on Contracts §84.
12. So far as the answer is concerned, the cause was tried below and briefed in this court on the theory of fraud, and it is not good as such. It contains the general allegation, however, that the outfit for which the notes were executed, was worthless, and we have examined the same on the theory as to whether it is good as a pleading of a failure of consideration or a want of consideration; and under the holdings it cannot be regarded as good on either of these theories. Neidefer v. Chastain (1880), 71 Ind. 363, 36 Am. Rep. 198.
13. The execution of the notes being admitted, the verdict for appellees cannot be attributed to a failure of proof under the complaint, and there being nothing to show upon which paragraph of answer the verdict of the jury and the judgment of the court rests, the overrruling of the demurrer to a bad paragraph of answer cannot, under the circumstances, be regarded as harmless. Shirk v. Neible (1900), 156 Ind. 66, 59 N. E. 281, 83 Am. St. 150.
Cause No. 9273, in which a nunc pro tunc entry was granted in the court below and consolidated with this cause is affirmed. This cause, being No. 8758, is reversed, with instructions to the lower court to sustain the demurrer to the paragraph of answer charging fraud, and for further proceedings in accordance with this opinion.