36 Ind. App. 568 | Ind. Ct. App. | 1905
The appellee sued the appellants to recover the price of certain scales, the complaint containing three paragraphs based upon three written and printed orders executed by the appellants, each paragraph seeking recovery of the contract price of one of the scales. A demurrer to each paragraph was overruled; and the three paragraphs were so nearly alike, except as to the amounts stated therein, that it will suffice to show the substantial averments of the first paragraph.
After preliminary statements, it was alleged that the appellants, March I, 1901, executed to the appellee a certain written and printed order and contract, a copy of which was exhibited, whereby the appellee sold to the appellants one Standard market computing scale, described, at and for the price of $70, with an allowance of $15 as a credit indorsed thereon; that by the terms of the order and contract the scale was to be shipped by the appellee f. o. b. Dayton, Ohio, and addressed to the appellants as Kilmer Bros., Warsaw, Indiana, and was to be paid for by the appellants as follows: Ten days' after shipment $5 in cash, and $5 per month thereafter until paid in full, the deferred payments to be evidenced by notes without interest; that on or about March 11, 1901, in accordance with the order and contract, the appellee shipped the scale by freight, from Dayton, Ohio, f. o. b. cars at that place, addressed to the appellants by their said firm name, at Warsaw, Indiana, of which shipment the appellee then and there notified the appellants; that in due course of trade and transportation the scale arrived at Y^arsaw, Indiana, without unnecessary delay, of which appellants were duly notified; that on or about March 21, 1901, the appellee made sight draft on the appellants, through a bank named, at Warsaw, Indiana, for the cash payment, and tendered to the appellants the promissory notes mentioned in the or
The instrument exhibited with the pleading, having at its head a notice that no scales would be shipped on trial, was in the form of an order addressed to the appellee, signed by the appellants by their firm name. It contained a request to ship the scale as indicated in the complaint, as soon as possible, f. o. b. Dayton, Ohio, addressed as stated in the pleading, with an agreement on the part of the appellants, “on fulfilment of the above,” to pay the specified price, $5 cash, and the same amount monthly till paid in full, and provision that ten days after shipment the apj)ellee was to make sight draft for cash payment, with notes for the balance, as pleaded. It was provided: “Should there be any failure to pay such draft or execute such notes for deferred payments, or should there be any default in any deferred payments, the full amount of the purchase price shall, and then does, become due and payable, and you or your agent may take possession of and remove said computing scales without legal process, unless an extension of time be granted by said Moneyweight Scale Company; and payments previously made shall be considered as havL ing been made for the use of said computing scales during the time the same remain in my custody. It is further agreed 'that the title of said computing scales shall not pass from the Moneyweight Scale Company until same are paid for in full, and shall remain the property of the Money-
Judgment affirmed.