The opinion
On Petition for Rehearing.
Montgomerey, J.
In the petition for a rehearing appellee urges the sufficiency of proof to sustain its answers founded upon breaches of warranty, and, upon these answers and this proof, asks us to uphold the action of the trial court in directing a vérdict. We can not concur in appellee’s view of the law. The principle announced in the original opinion was intended to apply to these defenses as well as to the answer founded upon fraud. We are not to be understood as intimating that any of the warranties relied upon are immaterial, or as expressing any opinion *42 as to the sufficiency of the evidence to sustain the defenses pleaded, hut we merely decline now to consider these questions.
11. The rule of law with regard to directing verdicts is different in the federal courts from that of this court, and the federal rule has been followed by some of the state courts, but we are content to adhere to the doctrine announced in the original opinion.
12. The cases of Oleson v. Lake Shore, etc., R. Co. (1896), 143 Ind. 405 , 32 L. R. A. 149, and Weis v. City of Madison (1881), 75 Ind. 241 , 39 Am. Rep. 135 , are cited in support of appellee’s contention. The verdict was directed in favor of the defendant in each of these cases on account of a failure of proof on the part of the plaintiff, and that action wa's sustained on appeal. We approve those cases.
James v. Fowler (1883), 90 Ind. 563 , is cited. The instruction given in that case by the trial court was.proper, and the cause was correctly decided upon appeal. The opinion unnecessarily announced a legal principle, which we can not approve.
The cases of Miller v. White River School Tp. (1885), 101 Ind. 503 , and Hall v. Durham (1887), 109 Ind. 434, 437 , so far as they conflict with the rule of law announced in the original opinion in this case, are disapproved.
The petition for a rehearing is overruled.