38 Ind. App. 490 | Ind. Ct. App. | 1906
Lead Opinion
A demurrer for want of facts was sustained to appellant’s amended complaint. It refused to plead further and appeals from the judgment thereupon
“Machinery to be loaded on cars at Eichmond, Indiana, on or about May 1, 1903, and shipped to A. J. Eleshman, consignee, at Oorydon, Indiana station, County of Harrison, State of Indiana. * * * 7. The title to said goods shall not pass until settlement is concluded, and accepted by Gaar, Scott & Co. * * * This order is not subject to countermand.”
It is averred in detail that appellant complied with the terms of said agreement upon its part in all things, but that appellee refused to receive said machine on its arrival at Oorydon, refused to execute his note and mortgage in payment therefor, as provided in the contract, or to pay freight and charges; that appellant thereupon tendered said machine to him, demanded that he pay for the same in the manner specified by the contract, but that appellee refused and refuses to do so; that appellant immediately thereafter stored said machine as appellee’s property, has ever since and now holds it in storage as his property, and notified him thereof; that appellee is indebted to appellant in the sum of $463, and the further sum of $30 freight paid by it, which sums are due and unpaid.
If appellee’s contention, that retaining title by the vendor prevents the maintenance of an action for the contract price, were conceded, it would as effectually bar a suit brought after actual possession of the machine had been taken as it would one under the circumstances here disclosed. In either case an election to sue for the purchase price operates to vest the complete title in the purchaser. It has sometimes been attempted to sustain the right of a vendor to recover the contract price, upon the theory that “if a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so and thereby binding himself to pay the whole sum.” White v. Solomon (1895), 164 Mass. 516, 42 N. E. 104, 30 L. R. A. 537; Register Co. v. Hill (1904), 136 N. C. 272, 48 S. E. 637. The trouble with this is that the contract is not one for the payment of a definite sum of money upon the happening of a certain'
The writer believes that the opinion in Kilmer v. Moneyweight Scale Co. (1905), 36 Ind. App. 568, should be modified, but the majority of the court do not think there is any conflict.
Judgment reversed, and cause remanded, with instructions to overrule the demurrer to the complaint, and for further consistent proceedings.
Rehearing
On Petition for Rehearing.
If the vendor had no power to waive such provision, he could in no instance recover the full contract price in an action brought before such settlement was concluded. This would be equally true, whether the goods were held by the vendee in person or held for him by the vendor. Acceptance of the goods by'the vendee does not destroy the condition or render it inoperative. The delivery of the property at the depot by appellant was, so far as it is concerned, as full a delivery as though appellee had driven to the factory and hauled the machine home. Sued for the contract price, appellee could as well answer in one case as the other, that by the terms of the contract the title remained in the vendor. Such suit in this State evidences an election to treat the sale as absolute. Had appellee taken bodily possession of the machinery and refused to make settlement, appellant might have elected to retake and keep
In the case of Colles v. Lake Cities Electric R. Co. (1899), 22 Ind. App. 86, the conditions were exactly reversed. The law by which the facts relative to delivery must be measured is a part of the contract, and in measuring the rights of the parties by law, the court puts nothing into the contract other than what the parties themselves include. Eacts involved in the authorities heretofore cited, so far as they differ from those presented in the case at bar, may be eliminated, without changing the reason or applicability of the rules declared.
In view of its importance and the novelty of the questions argued, this case has received very careful consideration, and the able brief in support of the petition for a rehearing does not persuade us that the conclusion heretofore announced was incorrect. The petition is therefore overruled.