15 Ind. App. 58 | Ind. Ct. App. | 1896
Fisher sued Jenkins and one William H. Eller. The second paragraph of his complaint is in substance as follows: The plaintiff avers that on or about January 7, 1889, the defendant, Jenkins, purchased of the defendant, Eller, a certain stock of groceries and fixtures in the city of Nobles-ville, and, in evidence of said purchase, said defendants entered into a written agreement as follows:
“This agreement, made this 7th day of January, 1889, by and between W. H. Eller and A. M. Jenkins, witnesseth, that W. H. Eller has bargained and sold to A. M. Jenkins his stock of groceries, etc., located in Caylor’s Block and Jenkins’ storeroom in the city of Noblesville, Indiana, at the invoice hereafter to be made, and to receive in payment therefor one house and lot in Westfield, and one lot, to-wit: seven, in Gray’s addition to Noblesville, and eleven shares of stock of the Noblesville Foundry and Machine Shop Co., at the sum of $1,350.00, and said Jenkins agrees to pay the balance of said invoice in thirty and sixty days, and he, said Jenkins, to receive the rents from*60 said houses to March 1, 1889, and said Eller to receive the rent thereafter from the tenants thereof.
(Sig.) “W. H. Eller,
“A. M. Jenkins.”
“That after the execution of said contract, certain differences arose between said Jenkins and said Eller as to the ownership of said property; that the said Jenkins thereupon instituted a suit in replevin in the Hamilton Circuit Court, making the said Eller and this plaintiff defendants therein, claiming the right of .possession and ownership of said property under and by virtue of said written contract; that such proceedings were had in said suit that under the writ of replevin issued therein, the said Jenkins took and kept possession of all said property and removed and sold the same at retail, so that no invoice could be made, and that the said Jenkins thereby waived the making of an invoice of said property as stipulated in said contract; that said property was, during all of said time, of the value of $2,000.00; that all of said amount in excess of the sum of $1,350.00, as provided in said contract, which should be paid by the transfer of certain other property, is now due and wholly unpaid; that the original contract so executed by and between said Eller and said Jenkins, was afterwards accidently destroyed by fire, and that the same cannot be found; that the above contract, as set out herein, is a true and correct copy of said contract; that said Eller, transferred and assigned to the plaintiff all his rights and interest in said contract before the institution of this suit, and also assigned by indorsement thereof on the back of a copy of said written contract, after said original contract had been so destroyed, which said assignment is as follows, to-wit:
“For value received, I hereby assign and transfer*61 all my interest, rights and causes of action to and in the within contract to William A. Fisher, this September 14, 1894. (Sig.) William H. Eller.
“That there is now due the plaintiff from said defendant Jenkins, on the goods he so took possession of, the sum of $1,000.00. Wherefore,” etc.
To this paragraph of complaint a demurrer was filed and overruled, and an exception saved. The appellant thereupon filed a plea in abatement, which, omitting the formal part, is as follows:
“Now comes the defendant, Obijah M. Jenkins, and, for his separate plea in abatement to the second paragraph of the complaint herein, says he admits that on the 7th day of January, 18S9, he purchased from the defendant William H. Eller the stock of groceries mentioned in the complaint, and the written contract set forth in the complaint was thereupon executed by said parties, and pursuant thereto this defendant conveyed to the said Eller, at the time, the real estate mentioned in the said contract, and turned over and assigned the shares of stock in the Foundry and Machine-Shop Company, all of which was so done at the sum and price of $3,350, as stated in said contract. ' And this defendant avers that the words in said contract, “the invoice hereafter to be made,” were construed by said parties, at the time, as meaning an invoice to be made by one person selected by the said Eller, one selected by said Jenkins, and in case of their disagreement, the two thus selected were to select a third. At once, upon the making of said contract, the said Eller, so construing the same as aforesaid, selected as his appraiser James K. Fisher, and the defendant selected as his appraiser Alex. Nixon, and thereupon the said appraisers began the work of making said invoice. But so soon as said invoicing
To this plea the appellant filed a demurrer, and the court sustained the same, to which ruling the appellant excepted.
Issue having been joined upon the complaint, the cause was submitted to a jury for trial. The jury returned a special verdict in writing, which is as follows: “We find that about the 1st day of October, 1888, the plaintiff Fisher was the owner of a. stock of groceries, fixtures, wagon and harness, in and about a storeroom located in the Caylor Block in the city of Noblesville, Indiana, and then and there contracted with the defendant Eller to sell the same to him, it being agreed between them that the title should not pass to Eller until he paid plaintiff for said property, but Eller from that time until the taking of the property under the writ of replevin, as hereinafter mentioned, took the management of said property and business, and bought and sold goods in his own name in the regular course of retail trade; that on the 8th day of January, 1889, said Eller entered into an agreement in writing with the defendant Jenkins to trade and transfer all the said property and all the stock of groceries then on hand to said Jenkins, which agreement was then signed by said Eller and Jenkins, and a correct copy of the same is set out in the complaint herein, and the said Eller then selected James K.
Appellant’s counsel have discussed all three of the alleged errors together and urge a reversal upon each of said grounds.
The trial of the cause necessarily involved an examination into all the facts surrounding the entire case, and this included the facts relied upon in the appellant’s plea in abatement. Not only was all such evidence heard by the court and jury, but the jury made a full finding of such facts as well as of all other facts
If, therefore, upon the facts found in the special verdict, the appellant was entitled to have the action abated, or if he was entitled to judgment on such verdict, there must be a reversal of the judgment of th'e trial court, otherwise such judgment must be.affirmed.
It is disclosed, by the special verdict, that Fisher, the appellee, originally owned the goods out of which this controversy arose; that he sold them to Eller, who in turn sold them to the appellant; that the sale by Fisher to Eller was a conditional one, Fisher retaining the title of the goods until they were paid for by Eller. Eller, however, took possession of and exercised acts of ownership over them, and actually sold them to Jenkins before the title had passed to him (Eller); that Fisher, manifestly for his own protection, stopped the transfer from Eller to Jenkins, while the parties were taking an invoice, and asserted his title to the goods; that the appellant brought replevin, and succeeded in obtaining the goods, upon what ground is not made to appear, but probably for the reason that he had purchased and partially paid for the same before he had any notice of appellee’s title, the latter having permitted Eller to exercise acts of ownership' over the property. But whatever may have- been the reason therefor, we are bound to accept the fact as such, that as between Fisher and Jenkins, the latter was ad
Granting the contention of appellant’s counsel, that as between Eller and Jenkins the taking of an invoice in the manner set forth in the plea in abatement was a condition precedent to any recovery for the balance of the purchase-money on the goods, the question arises, who was at fault in the failure to take the invoice of the goods? Assuming that the fault was to be attributed to the demand of Fisher for the goods at the time he claimed the same, this would not excuse Jenkins from rendering an account to Eller, or from proceeding with the invoice when he had taken possession of the goods under his writ of replevin. But instead of offering to proceed to the taking of such invoice, as his contract required, Jenkins, as we are informed by the special verdict, proceeded to sell the goods at retail and at auction, until, at the time the action in replevin was determined, the entire stock had been exhausted and the taking of an invoice was rendered impossible. Hence, if this action were by Eller to recover the balance due him on the contract, Jenkins would be estopped to set up the condition on which he relies, to-wit, that an invoice must first have been taken to determine the price of the goods, before there can be a recovery.
But whatever rights Eller had under the contract were transferred to Fisher by the assignment; for it cannot be successfully maintained that this assignment fails to convey to Fisher the entire interest of Eller in said contract. Fisher therefore1 stands in the shoes of Eller, and whatever rights the latter had before the assignment, Fisher may assert in this action.
As between Eller and the appellant, if there was any fault in failing to take an invoice, it was the fault
The special verdict finds that the value of the property was $1,750.00, and that $1,350.00 of this was paid by the conveyance of certain real estate and stock, leaving a balance of $400.00 due on the contract. This balance was payable in thirty and sixty days as provided in the contract, and was due before the commencement of this action: Whatever right the appellant had to insist on the taking of an inventory before any right of action could accrue to Eller as his assignee, has been waived by his failure to demand such inventory when it was in his power to have the same taken, and by selling and disposing of the goods, and thus putting it beyond human possibility to invoice said goods afterward. In all good conscience and equity, he ought to be required to pay the balance of the value of the goods of which he got the benefit. The result of the trial below seems to be eminently just and equitable, and we do not feel authorized to disturb the judgment.
Judgment affirmed.