176 Ind. 609 | Ind. | 1911
Appellants, as copartners, were the owners of certain real estate in the town of Fairmount, Grant county, Indiana, upon which they had constructed and were oper
The petition sets out the following facts: On October 1, 1904, appellants, who were the owners of certain real estate upon which was located machinery for the generation of electricity, conveyed it to one Ingler, and took back from him a purchase-money mortgage to secure $20,000 in payments, which mortgage by its terms included
“also all machinery, apparatus and appliances of whatsoever description that may hereafter be placed upon*612 said premises or installed as part of said lighting and power plant, or used as an adjunct thereto, until the mortgage has been fully paid and satisfied.”
It also included all wires, poles and other appliances which were a part of the plant, and located on the property of other persons. On September 29, 1904, a proposal was made to Ingler to sell to him on payments, under a written contract to be subsequently accepted by an executive officer of appellee before it became binding on it, an oil engine with its appurtenances, and to install such engine for a stated price. The contract provides that
“it is mutually agreed and understood that the title to the engine and equipment described in the above specifications shall remain in said company [appellee] until all said payments shall have been made in full. The purchaser agrees to do all acts necessary to perfect and maintain title in said company.”
Then follow provisions for retaking the property on default in payment. The engine was shipped, and was set up on the real estate by appellee, and was ready for use March 28, 1905, in accordance with the contract, but was never used. The petition then alleges that on April 3, 1905, appellants instituted a suit to foreclose their mortgage against Ingler; that a receiver was appointed; that such receiver took possession of, and operated, the plant; that a decree was entered and the property sold to appellants; that appellee was not a party to the suit; that the receiver had possession, and that appellee had demanded possession, and that neither the receiver nor appellants would permit the property to be removed, which appellee claimed the right to remove by reason of default in payments, and that appellants denied right of possession in appellee, its ownership, and that the property could be removed without damage or injury to the real estate. The petition prayed .for an order authorizing the removal of such property.
“Also all machinery, apparatus and appliances of whatever description that may hereafter be placed upon said premises, or installed as a part of said lighting and power plant, or used as an adjunct thereto, until this mortgage has been fully paid and satisfied.”
He directed that a deed be made to Ingler, giving as a reason that he had not yet perfected the intended incorporation. No corporation was ever formed. Johnson took charge of the plant upon the delivery of the deed, which was about the middle of October. The work of installing the engine began about the last of January, 1905. An old building was removed from the site, and another building of concrete blocks erected, and in this the engine was installed by excavating an area six and a half feet wide, twenty-four feet long and nine and a half feet vertical, and filling the whole solidly with concrete, in which anchor bolts with heads were vertically imbedded to a depth of six feet, which held the engine in plaee. It appears from the evidence that one McCarty was a general sales agent of appellee, at Indianapolis. Whether he had authority to employ Johnson does not appear, except inferentially, but Johnson represented himself to appellants to be a sales agent of appellee, and, it is claimed by appellants, in the presence of McCarty, who said nothing. It is also claimed by appellants that Johnson represented to appellants, in McCarty’s presence, that he had purchased the engine and had paid for it, and that McCarty stated that appellee sold engines for cash only. Appellee did in some sense acknowledge Johnson as its agent, for it approved the proposition of sale to Ingler, which was signed by Johnson as appellees “resident sales agent.” That McCarty held out to appellants, or at least permitted Johnson to hold out to them, that he was an agent of ap
It is not disputed that Johnson told appellants that the engine had been phid for before their deed was delivered and the' mortgage taken, and they had no notice to the contrary, unless it be from the testimony of McCarty, which is not inconsistent with the statement of Johnson, made later, that it had been paid for.
The judgment is reversed, with instructions to the court below to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.