31 Ind. App. 291 | Ind. Ct. App. | 1903
Appellant sued appellee upon two notes, and to foreclose a chattel mortgage securing their payment. Upon'issues being duly joined, the cause was tried by the court, resulting in a general finding for appellee.
Appellant’s motion for a new trial was overruled, and the correctness of this ruling is challenged by the assignment of errors.
Under the motion for a new trial, the only question that need be considered is the sufficiency of the evidence to sustain the finding.
There is no contradiction in the evidence upon any material fact, and it clearly appears that all the property purchased, and for which the notes were given, was delivered to appellee according to the agreement, understanding, and intention of the parties. The law only requires such a delivery as is consistent with the nature and situation of the thing sold, and so, when the goods are ponderous or bulky, or can not conveniently be delivered manually, or where they are not in the personal custody of the seller, actual delivery is dispensed with, and symbolical or constructive delivery will suffice. Story, Sales (4th ed.), §§311-311b; Benjamin, Sales (7th ed.), §§674-698; 21 Am. & Eng. Ency. Law, 550.
The law recognizes the fact that all species of personal property are not capable of the same kind of possession, and requires only that a purchaser or donee should take such possession as the character and nature of the property admit of. And in the many eases in which an actual delivery of the property sold is impossible or impracticable it is not required, but a constructive or formal delivery is deemed sufficient. 14 Am. & Éng. Ency. Law (2d ed.), 374, and cases there cited.
Another rule relating to delivery is that, in determining what is necessary to constitute a sufficient change of possession, due regard must 'be had to the character of the property, the nature of the transaction, the position and relations of the parties to the sale, and the intended use of the property. Montgomery v. Hunt, 5 Cal. 366; Lay v. Neville, 25 Cal. 545; Hewett v. Griswold, 43 Ill. App. 43; Kipp v. Lamoreaux, 81 Mich. 299, 45 N. W. 1002;. Tunell v. Larson, 39 Minn, 269, 39 N. W. 628; 14 Am. & Eng. Ency. Law (2d ed.), 375.
It appears from the record that it was the evident intention of the parties that the property was sold to appellee as it was, and where it was, and that after the - sale it was to be wholly under his dominion and control. This is emphasized by the fact that appellee did take possession of the engine at McCoy’s, and left the separator there because there was where he wanted it, and where he first intended to use it. He could have taken actual possession of the separator, and removed it, as he did the engine, if he had so desired. The parties agreed between themselves as to what should constitute a delivery, and appellant did all that was necessary to be done in order to put the property completely and unconditionally at the disposal of appellee. This was sufficient. Mechem, Sales, §§1186, 1187; Stephens v. Gifford, 137 Pa. St. 219, 20 Atl. 542, 21 Am. St. 868; Pinkham v. Mattax, 53 N. H. 600; Gray v. Davis, 10 N. Y. 285; Phillips v. Ocmulgee Mills, 55 Ga. 633. See, also, Aultman, etc., Co. v. Nilson, 112 Iowa 634, 84 N. W. 692.
The evidence does not support the verdict. Judgment reversed, and the court below is directed to sustain appellant’s motion for a new trial.