This case comes before us on a special finding of facts and law. The plaintiff sues as the assignee of the Superior Drill Company. The defendant received from thе Superior Drill Company a number of drills, three of which are in controversy here. The quеstion is whether, under this contract, the defendant became a purchaser of the drills, or was simply the agent of the Superior Drill Company.
The contract is lengthy, but it contained, among other provisions, a clause that:
“All machines sold by second party [defendant] shall be settled for during the season in which they are received,' at net prices herein named. If any machines remain unsold at time of settlement, the first party may rеquire second party to give his note, payable in 12 months, in settlement for the same; or, if first party prefer, said machines shall remain the property of first party, and subjeсt to their order, free of charge.”
The defendant, by other provisions of the contract, agreed to receive the machines on arrival, pay freight, and take proper care of them. The contract' further provided that:
“All machines and proceeds of sales under this contract, whether in notes, cash, or acсounts, shall be the property of the first party, held in trust in the hands of the second party; аnd proceeds of sales, whether in cash or notes, are to be turned in to first party as fast as received by second party.”
A further provision reads:
“ Second party agrees to reсeive, at any time after date, all the within-named machines that have not been рreviously ordered out by second party; all additional machines as ordered. Spring sales payable one-half June 1, 1893, one-half October 1, 1893. Fall sales payablе one-half*14 October 1, 1893, one-half September 1, 1894. With interest not less than 7 per cent, рer annum from June 1st on spring sales and October 1st on fall sales. Final settlement to be mаde not later than June 1st on spring sales and October 1st on fall sales of current yeаr.”
The evidence shows that these machines came into the hands of defendant, аnd that the three machines in controversy were on the 28th of February, 1896, in his possession. At thаt date he wrote to plaintiff a letter, which, among other things, contained the following language:
“Now, one thing more: I want those drillb, three of them, which you claim. I am not going tо lose any money on them, as you are trying to make me do so.”
This was in answer to a lеtter written by plaintiff, as follows:
“Allow me to again call your attention to the acсount of the Superior Drill Company’s bill, still unsettled, and long past due. You are aware that this account has been turned over to me, and, as I am in need of funds, would kindly, though urgently, request that you adjust this matter without further delay. Should you desire to sell me the goods at present value, I will consider and accommodate you, if possible. You understand, however, drill trade is in worse condition than any other manufacturing of this class, — suffer more, and cоnsequently offer at extremely low price now.”
The circuit judge found that this contract obligated defendant to pay for these drills, and we think this is the proper constructiоn of the contract. It is contended by defendant that the contract simply constituted defendant agent of the Superior Drill Company. It is true that, in a sense, he was an agеnt of the Superior Drill Company, and that the drill company reserved the title to the property. But such an engagement is not inconsistent with an obligation on the part of the defendant to pay for the drills, and this, we think, he undertook to do by the agreement. Aspinwall Manfg. Co. v. Johnson,
It is next urged that the statute - of limitations has run
We find no error in thе proceedings, and the judgment will be affirmed.