
    Webster and Another v. The Metropolitan Washing Machine Company.
    Pleading. — To an action upon a written guaranty of payment of the price of all clothes wringers sold by plaintiffs to one of the guarantors, it was answered, 1. That the clothes wringers sued for were not sold under the agreement, but were delifered upon trial, under a parol agreement. 2. That the articles sued for were purchased upon the faith of certain false and fraudulent representations of the plaintiff, and that by reason of said fraud defendants were damaged, &c.
    
      Held, that the parol agreement pleaded in the first answer did not conflict with the written guaranty sued on, and that both answers were good.
    APPEAL from the Ripley Common Pleas.
   Ray, J.

This was an action by appellee for goods sold and delivered to George Webster, one of the appellants, upon a guaranty executed by each of said appellants for the payment of all book accounts or notes given for clothes wringers, or other articles sold from time to time to said George. The complaint charges that the goods were, in consideration of said undertaking and guaranty, sold and delivered to said George Webster, upon the following order: “R. G. Browning, agent. Please send me two dozen clothes wringers — To. 2. (Sig’d) G. Webster.”

The defendants filed an answer in five paragraphs, the first and third of which were withdrawn. To the remaining paragraphs, demurrers were sustained. The second paragraph amounts to an averment that the two dozen clothes wringers were received on trial, and were not pur- . chased under the agreement securing payment for .goods sold. This paragraph does not conflict with the written instrument of guaranty, nor with the written order, but while it admits the possession of the goods, avoids liability under the written contract, and offers to re-deliver them ' when called for, as stipulated in the verbal agreement under which they were received. The paragraph was good, and the demurrer to it should have been overruled.

The fourth paragraph avers a warranty of the wringers, and that by the failure of the same the defendants were damaged in the sum of five dollars on each machine. This paragraph is bad, because it attempts to answer as to one hundred and seventy-four dollars.

H. W. Harrington and M. K. Rosebrongh, for appellants.

The fifth paragraph of the answer alleges that the goods were purchased upon the faith of, and confiding and believing in, certain false and fraudulent representations made by the agent of the plaintiftj who knew the same to be false; that by reason of the machines not being as represented, the defendants were damaged in the sum of four hundred dollars. The paragraph was good, and the demurrer should have been overruled.

. The judgment is reversed, with costs, and the cause remanded for further proceedings, in accordance with this opinion.  