193 Ind. 346 | Ind. | 1923
This was an action of replevin and conversion. Appellant filed a complaint in replevin, and, upon the suggestion that the goods demanded had been sold, it filed a second paragraph charging conversion. Each paragraph alleged that the plaintiff (appellant) was a corporation organized and doing business in the State of Indian^, and was the lawful owner of certain automobile tires and accessories, particularly described, of the value of .$1,000; that on a date two days before the action was commenced, the plaintiff demanded possession of such goods, which demand was refused, and that plaintiff was thereby damaged. The first paragraph also alleged that the property had not been taken for a tax or fine, nor seized under an execution or attachment, and that it was believed to be detained in Monroe County, Indiana; while the second paragraph alleged that appellee had converted the property and appropriated it to his own use.
Appellee-answered by a general denial, and by a para
That appellant was originally the owner of the goods is clearly shown, without dispute. The other evidence most favorable to appellee is to the effect that appellant is a corporation doing business at Indianapolis; that it shipped the goods in question to Bloomington, Indiana, tagged with the address of the “Overland-Martin Company” at that place and billed to the consignee by that name; that one John T. Martin took the goods from the railroad station; that Martin showed appellee the goods stacked up and leaning against the- wall in a room in the basement of a hotel at Bloomington, with shipping tags on part of them marked “To the Overland-Martin Company from Indianapolis Saddlery Company” ; that appellee traded to John T. Martin a secondhand automobile for about half of the goods at the hotel, and removed them to his store, but did not notice the shipping tags until after Martin had driven away with the automobile; that Martin told him the goods were paid for and clear; that the automobile appellee traded to Martin for such goods was worth $600; that the goods for which it was traded were invoiced to him at $600, and were worth that sum; that the goods described in the complaint were in appellee’s store at Bloomington, Indiana, when appellant demanded them, but before the sheriff served the writ of replevin (the second day thereafter), appellee had sold all of them
John T. Martin did -not testify. It does not appear what became of him after he drove away in the automobile for which he exchanged these goods. There was no evidence concerning the sale of the goods by appellant, to whom or in whose name the sale was made, or
The authorities relied bn by appellee, to the effect that one in possession of goods, to whom the owner, by fraudulent representations and false promises, has been induced to sell them for purposes of resale, can convey a good title by selling them to a good-faith purchaser by whom the purchase price is paid without notice of any defect in his title, have no application to this evidence. If the goods had been sold to Martin and shipped to Martin, under a promise on his part to convey them to the Overland-Martin Company, we should have an entirely different case, presenting questions which are not now before us, as to which we intimate no opinion.
The evidence most favorable to appellee only makes out a case where he bought, from John T. Martin, goods to which Martin had no title whatever, the possession of which Martin had obtained by falsely representing that he was buying them as agent for a corporation with large capital and wealthy stockholders, and taking possession of them without right when they were shipped to the supposed corporation. That such a purchase gave appellee no title as against the owner who had been thus tricked into shipping its goods to a distant point where the wrongdoer took them from the railroad station, has been decided by this court. Alexander v. Swackhamer (1886), 105 Ind. 81, 85, 91, 4 N. E. 433, 5 N. E. 908, 55 Am. Rep, 180;
Appellant is a corporation, and can act and contract only through agents, and statements made by Martin to the salesman who took the order on behalf of the Overland-Martin Company and to whom he applied to have the goods shipped, were no less made to appellant than what was said to the secretary-treasurer. The evidence does not sustain the verdict.
The court gave three instructions, numbered 8, 9 and 12, by which it submitted to the jury for decision the question whether or not appellee Was entitled to recover by reason of certain facts, including the suggested fact that the plaintiff (appellant) sold the goods in question to one John T. Martin. Since there was no evidence whatever that the goods were sold to John T. Martin, but the undisputed evidence was that the sale was negotiated on behalf of the Overland-Martin Company,' that the order was given in the name of that company, that the goods were shipped, billed, invoiced and charged to that company, and that the intention was only to sell to it, and that credit to it was refused until it was made to appear that “moneyed men” other than Martin were to be in the company, and then that it had been organized, these instructions were not applicable to the evidence. Therefore it was error to give them. Blough v. Parry (1896), 144 Ind. 463, 470, 40 N. E. 70; New York, etc., R. Co. v. Allen (1916), 62 Ind. App. 391, 396, 113 N. E. 315.
The judgment is reversed, with instruction to grant a new trial.