immaterial whether the use is with the con- App. 428, 81 N. E. 600. The rule deducible sent or against the objection of the adjoin- from these cases is that, where facts are ing landowner, or whether such owner in- allowed to go in evidence which furnish an tended to dedicate it to the public as a high-incorrect basis for the assessment of damway. Burns 1914, § 7663; Pitser v. McCreery, 172 Ind. 663, 670-672, 88 N. E. 303, 89 N. E. 317; Strong v. Makever, 102 Ind. 578, 584, 587, 1 N. E. 502, 4 N. E. 11; Southern R. Co. v. Norman, 165 Ind. 126, 130, 74 N. E. 896.

The serious objection to the instruction is that it directs the jury to take into consideration "all the facts in evidence before" it, in awarding damages, whether such facts had any legitimate bearing on the question "A place used by the public over which to of damages or not. Such an instruction has travel at will, but is so used by the mere license been held erroneous and reversible error in or permission of the owner of the land for his own convenience, or the convenience and acthe following cases: City of Delphi v. Low-commodation of others, will not be sufficient to ery, 74 Ind. 520, 39 Am. Rep. 98; Broadstreet v. Hall, 32 Ind. App. 122, 69 N. E. 415; Monongahela, etc., Co. v. Hardsaw, 169 Ind. 151, 81 N. E. 492; Knoefel v. Atkins, 40 Ind. 106 N.E.-46

owner thereof upon lands then owned by him for his own private convenience as a means of access to a certain sawmill then owned by him, and that, after said sawmill was removed, said way was closed up at the south end thereof, and was not thereafter used generally by the public, then I instruct you that such use of said way by and with the consent of the owner thereof would not constitute the same a public highway."

SHEA, J. This is the second appeal in this case. Equitable Life Assur. Soc., etc., V. Stough, 45 Ind. App. 411, 89 N. EL 612. The issues and the facts are not essentially different. The law as announced by the court in the former appeal must be accepted as the law of the case in this appeal. Upon the authority of that case, the judgment is reversed.

(58 Ind. App. 333) PENN AMERICAN PLATE GLASS CO. v. DE LA VERGNE MACH. CO.1 (No. 8272.)

Nov. 20, 1914.)

1. SALES ( 273*) — WARRANTIES — IMPLIED WARRANTIES.

struct a machine for a particular purpose of which he has knowledge impliedly warrants that it is suitable for the purpose for which it is designed.

A manufacturer who undertakes to con

Appellant cites Shellhouss v. State, 110 Ind. 509, 11 N. E. 484, and Baltimore, etc., R. Co. v. Seymour, 154 Ind. 17, 55 N. E. 953, in support of this instruction. But, when these decisions are considered together with those above cited, we do not think that this instruction, in its present form, is a correct (Appellate Court of Indiana, Division No. 1. statement of the law. Under our statute and the decisions interpreting it, if the public generally has used a road as a way continuously for 20 years, it matters not that such use was merely by the license or permission of the owner. If such way is used merely by persons who have business with the owner, or merely by such persons as are permitted by him to use it for his or their accommodation, such user will not establish a highway; but, if he permits the public indiscriminately to use the way, 20 years of such use establishes a highway. The instruction above makes no limitation upon the indiscriminate use of the way by the public, but states that if the public is allowed to travel over it at will, but by the permission or license of the owner, such user will not constitute it a public highway. In this respect the instruction is erroneous, and the court did not err in refusing to give it.

For the error in giving the erroneous instruction relative to the measure of damages, the judgment is reversed, and the cause re manded for new trial.

(58 Ind. App. 703)
EQUITABLE LIFE ASSUR. SOCIETY OF
UNITED STATES v. STOUGH.1

(No. 8358.)

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 772-776; Dec. Dig. § 273.*] 2. SALES (§ 273*) - WARRANTIES WARRANTIES-EXPRESS WARRANTIES.

- IMPLIED

A manufacturer of gas engines, who undertook to construct a gas engine for a particular purpose, impliedly warrants the suitability of the engine for the purpose desired, and the giving of an express warranty that the engine should be built in a thorough, workmanlike manner of proper materials does not supplant the implied warranty that it shall be of a suitable design,

Dig. 88 772-776; Dec. Dig. 273.*]
[Ed. Note.-For other cases, see Sales, Cent.
3. SALES (§ 354*) ACTION FOR PURCHASE
PRICE ANSWER-MOTIONS TO STRIKE.

In an action for the purchase price of a machine sold under an express contract, it is improper to strike from the answer setting up an implied warranty an exhibit containing a copy of the contract.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1005-1024; Dec. Dig. § 354.*] 4. PLEADING (§ 362*)-MOTIONS TO STRIKEPURPOSE.

It is improper to sustain a motion to strike

(Appellate Court of Indiana, Division No. 1. where the striking of allegations will render the

Nov. 19, 1914.)

pleading ambiguous.

[Ed. Note.-For other cases, see Pleading, APPEAL AND ERROR (§ 1097*)—SubsequENT | Cent. Dig. §§ 1147–1155; Dec. Dig. § 362.*] APPEAL "LAW OF THE CASE."

Where the issues and the facts on a second appeal are not essentially different, the law as announced by the court in the former appeal is the "law of the case."

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427: Dec. Dig. 1097.*

For other definitions, see Words and Phrases, First and Second Series, Law of the Case.] Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by Matilda Stough against the Equitable Life Assurance Company of United States. Judgment for plaintiff, and defendant appeals. Reversed.

John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, for appellant. M. M. Bachelder, of Indianapolis, for appellee.

Appeal from Superior Court, Madison County; H. Clarence Austill, Judge.

Action by the De La Vergne Machine Company against the Penn American Plate Glass Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John W. Lovett, of Anderson, and Burke G. Slaymaker and Ferdinand Winter, both of Indianapolis, for appellant. M. A. Chipman, of Anderson, and E. E. Hendee, of San Diego, Cal., for appellee.

SHEA, J. Action by appellee, a corporation, against appellant, a corporation, on account of goods sold and delivered. The complaint is in two paragraphs. The first alleged that appellant was indebted to appellee on an account for one motor cylinder

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

for which it was made. The buyer must of necessity leave to the manufacturer the selection of the design, and the process of manufacture. The buyer has no opportunity to inspect or test such machine, but must rely upon the skill of the manufacturer. Under such circumstances, when the manufacturer designs and undertakes to make and deliver to the buyer such a machine as the buyer requires for his known purposes, then, and in such case, the law implies and will read into the contract a warranty that such machine shall be free from defects latent and other

be reasonably fit for the use contemplated. It is further urged that the express warranty in this case does not cover the general design or plan of the engines so purchased.

complete, of the value of $1,626, sold and de- | for said purposes, warrants it to do the work livered by appellee to appellant, at appellant's special instance and request; that $500 had been paid on said account, leaving due and unpaid $1,126. The second paragraph was upon an account for two o. h. s. nuts for piston rod, of the value of $81.15, due and unpaid. Appellant filed an answer in three paragraphs. The first, a general denial was afterward withdrawn. It is insisted that the second paragraph of answer and set-off contains two theories one based upon an express warranty, the other upon an implied warranty. A motion to strike out many of the allegations with respect to the implied war-wise in the design or plan, and that it shall ranty was sustained. The contract and specifications attached and marked "Exhibit A" were also stricken out. It is the contention of appellant that the second paragraph of answer was drawn upon the theory of an implied warranty, and a breach thereof, and that the effect of sustaining appellee's motion to strike out was to emasculate and destroy the pleading. A motion to strike from the third paragraph of answer and set-off all the allegations with respect to damages to the factory and other machinery was sustained, leaving therein the theory of implied warranty. After the motion to strike out was sustained, demurrers were addressed to each paragraph of answer and sustained by the court, to which exceptions were duly taken. The cause was submitted to the court for trial. Finding and judgment for appellee on the first paragraph of complaint for $1,419.88 and on the second paragraph for $103.91.

It is very earnestly insisted that the motion to strike out parts of the second and third paragraphs of answer is not properly in the record, and cannot therefore be considered by this court. In view of the conclusion we have reached, this question need not be considered.

[1, 2] The controlling and important question presented by this record is as to whether implied warranties may be read into a written contract where there are certain express warranties contained in said instrument. It is urged in behalf of appellant that implied warranties must be read into a written contract such as this, upon all points not covered by the express warranties. It is argued that this is especially applicable to cases of this character. The record discloses that appellee was engaged in the manufacture of gas engines; that appellant operated a plate glass factory in the city of Alexandria, Ind; that appellant needed for use in its business three 600 horse power gas engines, which were ordered from appellee to be manufactured for the particular uses of appellant in its business of manufacturing plate glass. It is insisted that the manufacturer of a machine for a specific purpose, by a company, such as appellee, which holds itself out to the buyer of the machine as having the skill and ability to manufacture said machine

The guaranties are as follows:

"(1) We will construct the said engines in all their parts in a thorough and workmanlike manner; (2) using none but the best materials; (3) and under the stipulated conditions will guarantee that the said engines will perform the work herein specified if properly handled; (4), and will replace any part of said engines which may prove defective, either in material or workmanship for one year from their comple tion; (5) that each of the engines will produce 600 effective horse power with a consumption of fuel in the form of natural gas having heat value of about 900 B. T. U. per cubic feet, not exceeding 10,000 B. T. U per horse power per hour, when running at 100 revolutions per minute.'

It is insisted that none of these warranties meet the question of the inherent inadaptability of the engines to the uses for which they were ordered, made and attempted to be used. It is charged in each paragraph of the answer that the fly wheel, instead of weighing 26,000 pounds as the specifications designated, in fact weighed 73,000 pounds; that its weight was excessive as compared with the other parts of said engine, especially for the shaft upon which it revolved; that after its use for the period of time stated, the shaft became crystalized and broke, causing the damage stated, all because of the faulty plan or design of said engine and fiywheel as above stated. Appellee argues very earnestly that in view of the fact that the above guaranties were contained in the written contract, there could be no implied warranty covering any other or different defects which might appear in the plan, design, or principle upon which the machine was constructed, and that the warranties contained in the written contract covered a period of one year only, because of the statement in said warranties that appellee would replace any part of said engines proving defective within one year of their completion. The defects in the engines in question were not complained of until a period of 41⁄2 years had elapsed. There are some Indiana cases which contain statements which, if given their full import, sustain appellee's contention. It is argued that the detailed description of the machines to be constructed pre

cludes the idea of an implied warranty of ably fit for the use for which it was intended. the plan or design.

Fitzmaurice v. Puterbaugh, 17 Ind. App. 318, 320, 45 N. E. 524; McClamrock v. Flint, 101 Ind. 278; Poland v. Miller et al., 95 Ind. 387, 48 Am. Rep. 730; Robinson Machine Works v. Chandler, 56 Ind. 575; 2 Mechem on Sales, § 1344; 2 Benjamin on Sales, § 966; Jones v. Just. L. R. 3 Q. B. 197.

If this warranty is covered by the express terms of the contract, there is no implied warranty for that reason. If the written stipulation does not cover it, the law writes into the contract the warranty which the law implies.

In the case of Conant v. National State Bank, 121 Ind. 323, at page 327, 22 N. E. 250, at page 251, cited and relied on by appellee, the court say: "A description of a thing is not of itself a warranty of what it will accomplish." If, therefore, the description of the machine set out in the contract under consideration is not a warranty of "what it will accomplish," it will not cover the implied warranty that the machine is so planned and designed to do the work for which it was intended. While there are some expressions in the case of Conant v. National Bank, supra, which if taken from their context would seem to support appellee's theory, when considered with all the facts, they are not in conflict with the principle that warranties not cov-rants that it is suitable for the purpose for ered by the express terms of the contract are implied in cases such as the present. The principal point decided by the case of Conant v. National State Bank, supra, is that parol proof cannot be heard to vary the express terms of the contract. This doctrine is beyond dispute in this jurisdiction, but it has no application to the present case.

In the case of McCormick v. Yoeman, 26 Ind. App. 415, 418, 59 N. E. 1069, 1070, cited and relied on by appellee, the court say that: "Where a written contract is made. oral * and implied warranties and all oral negotiations are merged in the written contract."

The parties sought to change and vary the express terms of the writing, which the court very properly said could not be done.

The rule may be stated as follows: A manufacturer who undertakes to construct a machine for a particular purpose, of which he has knowledge at a fair price, impliedly war

which it is designed, and for which the purchaser intends to use it. This is true because the maker must of necessity be possessed of skill and ability in such work, the buyer has no opportunity to inspect the machine, and is therefore compelled to rely upon the skill and ability of the maker. This principle seems to be so well settled that further citation of authority is unnecessary.

The question then presents itself: Do the written warranties in the present contract cover the defect in the plan or design of the engine complained of? There is much confusion among the authorities upon this proposition, but we call attention to the following cases, which we believe state the correct prin

ciple:

Works, 89 Iowa, 464 at page 466, 56 N.W. 541, In the case of Bucy v. Pitts. Agricultural at page 542, the court say:

ranty does provide as to the same obligation, it excludes the implied."

Tiffany on Sales, page 266 (2nd Rev. Ed.) contains this language:

The case of Sullivan Machine Co. v. Breeden, 40 Ind. App. 631, 82 N. E. 107, cited by appellee, was an action upon a written contract, which contained a guaranty that the that an implied and an express warranty may "The rule deducible from the authorities is machine sold was the equal "in design, mate- exist under the same contract, as when the exrial and workmanship to the recent channel- pressed does not relate to the obligations creating machines shipped into the Indiana dis-ed by the implied; but when the expressed wartrict." The court say the defendant by his pleading "admits the execution of the contract, as averred in the complaint, but undertakes to avoid it by alleging an altogether different parol contract of warranty than that contained in the writing sued upon." The defendant in that case averred in a paragraph of answer that the seller's agent had warranted the machine to be the best in the market. The court held the pleading bad as being an effort to change the terms of the written agreement by parol. This case, when the facts are considered, does not sustain appellee's contention in the present case.

The cases of Johnson Harvester Co. v. Bartley, 81 Ind. 406, Brown v. Russell & Co., 105 Ind. 46, 4 N. E. 428, and Nave v. Powell, 52 Ind. App. 497, 96 N. E. 395, are readily distinguishable in their facts from the case we are considering.

The great weight of authority sustains the principle that the manufacturer who undertakes to make an engine for a specific use

"It seems however, while an express warranthe same subject, it will not be held to have ty, as a rule, excludes an implied warranty on that effect if such does not appear to be the intention of the parties. It is true, as a general rule, no warranty will be implied where the parties have expressed in words the warranties by which they mean to be bound, but the rule does not extend to the exclusion of warranties implied by law where they are not excluded by the terms of the contract."

See, also, George E. Pew v. Karley & Titensor et al., 154 Iowa, 559, 134 N. W. 529; Acme Harvesting Mach. Co. v. Casperson, 168 Mo. App. 558, 153 S. W. 1069; Edwards Manufacturing Co. v. Stoops, 102 N. E. 980; Main v. Dearing, 73 Ark. 470, 84 S. W. 640; Ideal Heating Co. v. Kramer, 127 Iowa, 137, 102 N. W. 840.

It follows therefore that the court erred in sustaining a demurrer to the second and

an implied warranty of the plan and design of the machine, and a breach thereof.

Error was also committed in striking from the third paragraph of answer the items of special damages charged.

[3, 4] It was likewise error to sustain the motion to strike out parts of the second paragraph of answer and set-off. Striking from this paragraph Exhibit A, which is the contract and specifications, was error upon any theory. It is also true that the pleading is made ambiguous with the parts stricken out. This is not the office of a motion to strike out. Bliss on Code Pleading, § 215. Many other questions are presented by very able briefs of counsel on both sides of the case, which we do not here consider, as we have indicated the court's opinion as to the controlling questions, and the other questions, largely of a technical character, may not arise in another trial.

HOTTEL, J. This is a suit by appellee against appellant on a policy of insurance by which appellee's automobile was insured against "loss or damage in excess of $25, on each occasion of theft, robbery, or pilferage by persons other than those in the employment, service, or household of the assured." There was a trial by the court, and a special finding, on which the court stated its conclusion in appellee's favor and rendered judgment accordingly. An exception to the conclusion of law presents the controlling question relied on for a reversal of such judgment.

The court finds, among other facts, the following in substance: On the day of July, 1910, appellee's automobile was insured by appellant company. A copy of the policy is set out in the finding and contains the clause quoted above. kept his car in Moore & Carter's garage at LoAppellee gansport, Ind. About 8 o'clock in the evening on said day one John Obenchain, in company with other boys, took said automobile out of er-city of Peru, Ind., and when at a point about said garage for a joy ride, and ran it to the

For the error in sustaining the demurrer to the second and third paragraphs of answer and set-off, as well as for the other rors stated, the judgment is reversed.

(57 Ind. App. 256)

MICHIGAN COMMERCIAL INS. CO. OF
LANSING v. WILLS.
(No. 8456.)

six miles west of said city drove it into a fence and wrecked it, and abandoned the same and left it where it was broken and wrecked. At the time said Obenchain took said automobile he was not in the employment of the plaintiff or any member of his family, and was not a member of his family or household, and had no authority or the permission of any one to take said automobile, but took it for his own use and

(Appellate Court of Indiana, Division No. 1. benefit, and for the purpose of a joy ride. Said

Nov. 20, 1914.)

1. TRIAL (§ 397*)-FINDINGS-EFFECT.

In a suit on an insurance policy, where the court found the facts, its failure to find a fact which brought the case within the provisions of the policy is a finding against the existence of such fact.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 940-945; Dec. Dig. § 397.*]

2. INSURANCE (§ 434*) — THEFT INSURANCE — "ROBBERY"-THEFT"-"PILFERAGE.'

Where plaintiff's automobile was insured against loss or damage in excess of $25, occasioned by theft, robbery, or pilferage, plaintiff cannot recover for damages occasioned by the wrongful taking of his machine by persons who intended to use it, but not to steal it, for an intention to steal is an essential to a conviction of robbery, theft, or pilferage, and such words must be construed the same in an insurance policy as in ordinary cases.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 434.*

For other definitions, see Words and Phrases, First Series, Pilfer; also First and Second Series, Robbery; Theft.]

Appeal from Circuit Court, Clinton County;. Leroy Nash, Judge.

Action by Herbert F. Wills against the Michigan Commercial Insurance Company of Lansing. From a judgment for plaintiff, defendant appeals. Reversed.

Robert C. Hillis and Thomas C. Bradfield, both of Logansport, and Harry C. Sheridan and Earl F. Gruber, both of Frankfort, for appellant. Jos. P. Gray, of Omaha, Neb., for appellee.

Obenchain took the car unlawfully from the garage, and at the time he so took it he had no right or authority to take it, but took it without the permission of any person or persons having its custody or care, or having authority to give him permission to take it. He took it for the purpose of using it for his own use and benefit, and plaintiff was damaged by the wrongful taking and conversion of said automobile and the injury thereto by said Obenchain in the sum of $226.50.

On this

Other parts of such finding are not involved in the consideration of the question before us and are therefore omitted. finding of facts the court stated as its conclusion of law:

"That the plaintiff is entitled to recover of and from the defendant herein the sum of $226.50."

[1] The question which we are called on to determine is: Do said facts found by the court authorize the conclusion that appellee suffered a loss to his automobile within the meaning of the clause of such policy heretofore set out? It will be observed that the court makes no express finding that such automobile was stolen, or that it was taken

with intent to deprive the owner thereof. An absence of such finding is a finding

against the appellee. Mug v. Ostendord, 49 Ind. App. 71, 96 N. E. 780.

[2] We find no decisions of our own state where this precise question has been decided, but in a recent case (Hartford Fire Ins. Co. v. Wimbish, 12 Ga. App. 712, 78 S. E. 265) a policy containing a clause almost

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No: Series & Rep'r Indexes