DISSENTING OPINION. This was an action by appellant against the appellee to recover upon a promissory note of which the appellee was the maker. The complaint was in the usual form and asked for judgment upon said note for principal, interest, and attorney's fees in the sum of $250, alleging that said sum was a reasonable attorney's fee.
To this complaint the appellee filed two affirmative paragraphs of answer; he also filed a cross-complaint in one paragraph. The appellant demurred to each paragraph of answer, and also to said cross-complaint, each of which demurrers was overruled, and to each of which rulings the appellant saved an exception. Thereafter the cause was put at issue by replies in denial to each of said paragraphs of answer, and by answer in denial to said cross-complaint. A trial by jury resulted in a verdict for the appellee upon the issues joined upon his cross-complaint; there was judgment accordingly, from which this appeal is prosecuted.
The errors assigned and relied upon in this appeal challenge the action of the trial court, severally, in overruling the said demurrers, and in sustaining the motion of the appellee to have the opening and closing of the argument to the jury.
As the verdict of the jury rests upon said cross-complaint we shall notice first, the assigned error challenging the aforesaid ruling thereon.
In this pleading it is alleged that on a date named the appellee and the appellant "entered into a certain written agreement and warranty," and that by the terms of said written agreement and warranty the appellee purchased of and from the appellant a farm tractor and "one three bottom engine plow for the sum of $1,300; that appellee had paid $700 thereon, paying $500 in *Page 216 cash, and one $200 Liberty bond, which was accepted at its face as cash, and that he had executed the note sued on in payment of the balance of said purchase price; that said tractor would not do the work it was purchased to do, and would not do the work which it was intended to do. Said pleading then sets forth, in detail, wherein said tractor failed to do the work for which it was purchased, and for which it was intended, and then alleges that, as soon as he discovered that said tractor would not do said work, he notified the appellant and that one Maxwell, an officer of said company, came and endeavored to operate the same but could not make said tractor successfully perform the work for which it was designed, and that thereupon the appellee tenderedback to appellant the said tractor; that appellant did not return to appellee his said note, nor did it repay to appellee the money so paid by him on account of the purchase price thereof as it had agreed to do. There was a prayer for damages in the sum of $1,000.
The said written contract of purchase, as an exhibit, was made a part of said cross-complaint, and, so far as the same is necessary to be considered in determining the sufficiency of said cross-complaint, it is as follows:
"If, upon trial with proper care, the machine fails to work properly, the purchaser shall immediately give written notice tothe seller stating wherein the machine fails, and shall allow reasonable time for a competent man to be sent to put it in good order * * *. If the machine cannot be made to work well, thepurchaser shall immediately return it to said seller, and the price paid shall be refunded, which shall constitute a settlement in full of the transaction. It is expressly agreed that the title to the property herein ordered shall not pass to the purchaser until full payment therefor shall have been made, whether notes have been given for the purchase price or not." (My italics.) *Page 217
The rights of the said parties were fixed by the said contractas they made it, and we must determine the sufficiency of the allegations of said cross-complaint by measuring them by the terms of said contract.
It is fundamental, in the law of contracts, that before a party thereto can claim damages as against the other party thereto, on account of an alleged breach thereof, the party who would so claim damages must himself have complied with such contract, must have done and performed all things mentioned in said contract by him to be done and performed. This is especially true as to the performance by him of things precedent, as it is a maxim of the law that no party who has himself broken a contract can complain of a breach by the other party subsequent to his own breach. The specific breach relied upon by the appellee in this case, and upon which the jury awarded him damages, was the alleged failure of the appellant to return to him the money paid and the note given, as provided for in said contract.
It will be noted that the said written agreement, the contract of sale relied upon by appellee, provided that if, upon trial with proper care, the said machine failed to work properly, the purchaser should: (a) Immediately give written notice to the seller, and that in said notice he should; (b) state wherein said machine failed to do the work for which it was intended. These were conditions precedent, to be performed by the appellee, before he could, as against the appellant, insist upon a rescission of said contract. The allegations of said cross-complaint, so far as they relate to the above mentioned provisions are: "That as soon as this cross-complainant discovered the fact that said tractor did not perform successfully the work for which it was designed, he notified the said cross-defendant." It is not alleged that the notice so given was in writing, as *Page 218 required by said contract, nor is it alleged that, in and by said notice, the appellant was told or informed as to the particular defects, or ways, or manner, in which said machine failed to do the work for which it was intended. For aught that appears in the pleading, the appellee may have simply sent verbal notice to the appellant giving to it information as to only ONE of the many alleged defects now by it complained of, and saying nothing as to any other defect and giving to appellant no chance whatever to remedy any of them. The presumption is, under the allegations of said pleading, that said notice was not in writing. Lamb v.Donovan (1862), 19 Ind. 40; Percifield v. Black (1892),132 Ind. 384; Horner v. McConnell (1902), 158 Ind. 280; Perkins,etc., Co. v. Yeoman (1899), 23 Ind. App. 483. However, the appellant in this case disregarded the noncompliance of the appellee in the matter of the form in which said notice should have been given, and, by one of its agents, responded thereto and attempted to adjust said machine, at least in some particular, and it is therefore now estopped to insist that said notice was insufficient, AS TO ITS FORM. The authorities cited in the principal opinion fully sustain this conclusion.
But as to the contents of said notice, it will be remembered that the pleading does not allege that appellant was therebyfully informed as to each and all the said defects complainedof, there is no allegation that appellant was given information as to any particular defect. Had said cross-complainant alleged that "he had fully informed defendant of said defects," then and in that event he would have stated a "conclusion" and a "motion to make more specific" would have been proper, but as the pleading stands, it is not subject to such motion because here, there is an entire absence of a necessary allegation, and the pleading is, therefore, fatally defective. *Page 219
It will also be noted that the said contract of sale provided that: "If the machine cannot be made to work well, the purchaser shall immediately return it to said seller, and the price shall be refunded, which shall constitute a settlement in full of the transaction." (My italics.) The allegation of said pleading, as to said condition is: "This cross-complainant tendered back to said cross-defendant, Maxwell Implement Company, said tractor." By the said contract of sale, the purchaser, under the conditions specified, was given the right, not to TENDER BACK said machine to appellant, but to return said machine to appellant, to take the said property which he had purchased back to the place of business of appellant and there turn over, or at least offer to turn over to appellant the possession of the same. The return of the property, as provided for, was also a condition precedent to be performed by the appellee. The appellant, in the pleading under consideration, has tried, it would seem, to frame his pleading under the rule of the common law. Under this rule, it was necessary, in pleading the performance of conditions precedent, for the pleader to aver what he had done in the way of performing each of such conditions; or, if such condition had not been by him performed, then he was required to state fully why he had not performed the same, so that the court might be able to say whether such performance had been waived, or been excused. Tested by the rules of the common law, the pleading under consideration is fatally defective, and it has been held, and seems to be the settled law of this state, that if a party attempts to state the facts constituting performance of a condition or conditions precedent, he must state such facts with the particularity and strictness required by the rules of the common law, and the statute cannot aid the pleading. Watson, Revision of Works' Practice § 362, and authorities cited. The questions *Page 220 presented to us by the ruling complained of are of law, not of fact. When the court overruled the demurrer to this cross-complaint, it held, as a matter of law, that if the appellee should establish the facts in said pleading alleged, as therein alleged, he would be entitled to judgment. This was error. Bowen v. Woodfield (1904), 33 Ind. App. 687; Wayne,etc., Loan Assn. v. Beckner (1922), 191 Ind. 663; Louisville,etc., R. Co. v. Widman (1894), 10 Ind. App. 92; United StatesExpress Co. v. Harris (1875), 51 Ind. 127.
It is also urged that the court erred in overruling the demurrer to the first paragraph of answer of appellee. A reading of this paragraph discloses that it is laden with the same infirmities as the said cross-complaint. The demurrer thereto should have been sustained.
It is next urged that the court erred in overruling the demurrer of appellant to the second paragraph of answer of the appellee.
This paragraph of answer, pleaded in bar of the suit upon said promissory note, admits the execution of said note, the sale of said tractor, etc., and then alleges that: "Differences arose between said plaintiff and this defendant after the delivery and attempt to operate said tractor as to whether the same complied with said warranty; that * * * that plaintiff and this defendant agreed to compromise and settle their said differences, and by the terms of said agreement and compromise the said plaintiff agreed to take back said farm tractor and to furnish in its place and stead a farm tractor commonly known and designated as a Moline tractor, and said plaintiff, in consideration of the right of furnishing said Moline tractor, and to settle the difference between plaintiff and defendant, was to keep the cash and Liberty bond as well as said note, which defendant agreed to pay according to the tenor thereof; that said defendant also, in consideration of the said plaintiff furnishing *Page 221 unto the said defendant the said Moline tractor, agreed to pay a further and additional sum to plaintiff in an amount not to exceed two hundred dollars." It is then alleged that the appellant had failed to furnish said Moline tractor, as it had agreed to do.
If appellant had failed to keep its agreement to furnish such other tractor, as alleged, this might become the foundation for an action for damages, but, the averments of the said paragraph of answer under consideration fall far short of stating facts sufficient to bar the cause of action stated in appellant's complaint. The demurrer to this paragraph of answer should have been sustained.
In my opinion, this cause should be reversed, with directions to the trial court to sustain appellant's motion for a new trial, to sustain appellant's demurrer to the first and second paragraphs of appellee's answer, and to sustain the demurrer of appellant to the cross-complaint of appellee, with leave to appellee to amend his pleadings if he shall so desire.