53 Ind. App. 611 | Ind. Ct. App. | 1913
— This is a suit by appellant, to recover from appellee a commission for the sale of canned goods. The complaint is in one paragraph, which appellee answered by general denial and a seventh paragraph by way of set off, to which appellant demurred for insufficiency of facts. The demurrer was overruled and an exception reserved. The court found for appellee and rendered judgment against appellant, in the sum of $151.45. Appellant’s motion for a new trial was overruled and this appeal taken.
A new trial was asked on the ground that the assessment of the amount of recovery was erroneous, being too large; that the decision of the court is contrary to law and is not sustained by sufficient evidence; error in the admission of certain evidence.
“State of Indiana, County of Tipton, SS: The Windfall Canning Company hereby bargains and sells to the First National Bank of Tipton, Indiana, the following described property, to-wit: All of the personal property of all kinds and character belonging to said Windfall Canning Company, said personal property consisting of all packages, canned goods, boxes, barrels, cans, caps, vegetables, fruits, pulp, corn and stock manufactured or in process of manufacture, and all materials used in the business of said Company owned or held by it in trust or on commission or sold but not removed, or in cars on the sidetracks adjacent to said Canning Company property, situate in the town of Windfall City, Indiana, and all of said kinds of property above described of said Canning Company may-become in possession of during the year, 1909. Said Bill of Sale is hereby made in payment of $27,500 indebtedness shown due and owing by said Windfall Can*615 ning Company to the said First National Bank. Witness our hands and seals this 19th day of June, 1909.
The Windfall Canning Company. By W. A. Bowlin, President. (Seal) ”
Bowlin continued to manage the business of said company for appellee, and was required to turn over to it all the proceeds of the sales of goods. On August 19, 1909, one John S. Mitchell was by the appellee placed in charge of the business of said company and on August 30, 1909, at the suggestion of said Mitchell, said Bowlin executed another instrument as follows:
“Windfall, Indiana.
For value received, I hereby assign all my rights, title and interest in the canned goods owned by me consisting of about nine hundred eases of peas stored at the Warsaw Canning Factory, Warsaw, Indiana, and nine hundred and ninety five cases of corn stored at the Coburn Warehouse, Indianapolis, Indiana, shipped from Cleveland, Ohio. Said assignment of canned goods to be handled in the same manner as the canned goods now on hand at the Windfall Canning Company. W. A. Bowlin.”
It is not disputed that the carload of corn was packed by the Warsaw Canning Company and that the Windfall factory did not can corn and was not equipped for so doing. It is asserted by appellant that the appellee has no claim to the car of corn except that given by the instrument of date August 30, 1909; that the instrument is incomplete and defective in form and was not delivered to appellee by Bowlin, but was held by said Mitchell; that the car of corn was sold prior to August 30, and the proceeds rightfully applied by him to the payment of the indebtedness due him from said Windfall Canning Company. The car of corn was shipped to Cleveland, Ohio, prior to June 19, 1909, and was rejected and from there was shipped to the Coburn Warehouse, Indianapolis, Indiana, where it arrived prior to August 20, 1909. On August 23, appellant wrote to the Windfall Canning Company reporting the condition of the
There is no available error shown by the record.
Judgment affirmed.
Note. — Reported in 101 N. E. 395. See, also, under (1) 31 Cyc. 226; (2) 4 Cyc. 67; (3) 35 Cyc. 302; (4) 20 Cyc. 572; (5) 16 Cyc. 785; (6) 3 Cyc. 310; (7) 4 Cyc. 111. As to tbe scope and office of a counterclaim under tbe code, see note to Woodruff v. Garner (Ind.), 89 Am. Dec. 482. As to acceptance and delivery of goods wbicb will satisfy tbe law of sales, see 49 Am. Dec. 325 ; 37 Am. Rep. 16; 96 Am. St. 215.