
    Burr et al. v. American Incubators, Inc. American Incubators, Inc., v. Adams et al., d. b. a. Fritz & Burr.
    (Decided April 27, 1933.)
    
      Mr. T. B. Mateer, for T. S. Burr.
    
      Mr. Benjamin Olds, for the American Incubators, Inc.
   Montgomery, J.

American Incubators, Inc., brought an action in replevin in the court of common pleas of Morrow county in the ordinary form of petition and affidavit against Fritz & Burr for the recovery of possession of an incubator claimed to have been sold conditionally; the title to same to remain in the plaintiff until paid for.

To that petition an answer was filed, which, after making certain admissions, set forth a denial, and there then followed a cross-petition by defendant for damages for an alleged breach of an express warranty by plaintiff of this incubator.

The reply being filed, the ease was submitted to a jury. The jury returned a verdict for the plaintiff, finding that it was entitled to possession of the property at the commencement of the action, that the defendants unlawfully detained the same, and that the value of the property was $2,080.60. The jury also returned a verdict on the cross-petition for the defendants finding there was due them the sum of $2,630.60.

Motions for a new trial having been filed by each of the parties, and having been overruled, judgment was rendered for the defendants for the difference between the two verdicts. Prom this judgment both parties have prosecuted error; case 290 being error proceedings instituted by defendant Burr, individually, and as administrator of his codefendant, now deceased, and case 291 having been instituted by the plaintiff below. In each of these proceedings there is a prayer for reversal of the judgment of the court below. Bach of these prayers will be granted. There may be a judgment of reversal in each proceeding.

The record shows that upon the institution of the proceeding in the court of common pleas an order for delivery of the property was issued to the sheriff of Morrow county. His return is in evidence, although the record shows he never filed his return. It shows that he took possession of the property described, and caused the same to be appraised, all in accordance with Section 12055, General Code.

The record shows that the plaintiff gave bond as required by Section 12056, General Code, but the record fails to show that the sheriff ever delivered the property to the plaintiff. It appears that he took possession of the property by locking the building belonging to the defendants, in which this personal property was located. In other words, he deprived the defendants below of possession of the property, and did not deliver it to the plaintiff.

Plaintiff below claims that the verdict on its behalf is justified under Section 12070, General Code. We do not think this contention tenable. That section provides :

“When the property claimed is not taken or is returned to the defendant by the sheriff for want of the bond required of the plaintiff, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper.”

This section is not applicable because the property was taken and was not returned to the defendants. In view of this situation, the plaintiff below was not entitled to have the cause proceed to a determination of the value of the property or the amount of damages.

In going to the contention of the defendant below, it will be observed that the contract of sale of this incubator itself contained no warranty, and the contract on its face recites, “this contract covers all agreements between the parties.” The defendants below, therefore, were not entitled to claim or offer evidence of any express warranty or breach of the same; this would be nothing more or less than an attempt to vary by parol evidence the terms of a written contract.

It appears from the record that the plaintiff below, as a part of its documentary evidence, offered what it is contended now is an express warranty, and so cannot complain. However, the defendants below were permitted over objection to offer in evidence proof of defects of other incubators; noticeable in this respect is defendants’ Exhibit No. 1. Such evidence is clearly erroneous and prejudicial, and should not have been permitted.

Judgment reversed.

Sherick, P. J., and Lemert, J., concur.  