57 Ind. App. 500 | Ind. Ct. App. | 1914
Appellee purchased from appellant a stock of merchandise under an agreement which reserved the title thereto in appellant until the full purchase price was paid. Appellee paid part of the consideration in cash when the stock of goods was inventoried, and a further payment when possession was obtained, but having defaulted in his first deferred payment, appellant demanded possession of the goods, which being refused, it brought this suit in replevin to recover them.
The complaint is in the usual form for such actions accompanied by the usual affidavit. The first paragraph of answer was in general denial, and the second proceeded upon the theory that appellant should have refunded to appellee the money paid it before making default, but which it had failed to do. Appellee also filed a counterclaim in which he demanded a return of the cash paid by him before making default, less the net proceeds of the business while he was in possession and in charge of the goods. An
A demurrer to appellee’s second paragraph of answer was sustained, the demurrer to the counterclaim overruled, and the demurrer to the first paragraph of answer to the counterclaim overruled. The cause being at issue was tried by the court, resulting fn a general finding and judgment for appellant on its complaint, that it was the owner of and entitled to the possession of the stock of goods in controversy, subject, however, to the payment to appellee of $1,541.75 which was found to be due appellee on his counterclaim. The finding was also against appellant on the set-off to appellee’s counterclaim.
The causes assigned in the motion for new trial are that the decision on the counterclaim is not sustained by sufficient evidence, and is contrary to law, and that the assessment of the amount of recovery is erroneous, being too large. An examination of the evidence shows no conflict so far as the material questions of fact are concerned. The facts are that on July 26, 1911, appellant sold to appellee a stock of merchandise and fixtures under a contract by which it was provided that appellee was to pay therefor $200 upon the execution of the contract and upon the completion of the inventory, which was to be taken on August
While appellant has cited some eases without this jurisdiction which seem to state as a general rule the doctrine' that when property is sold with a reservation o£ the title, and possession is sought by reason of a default of the purchaser, all payments prior to the default become forfeited to the seller, yet an examination of these cases will show that in each instance the contract contained a forfeiture clause, either express or implied, by virtue of which all payments made upon the contract were to be forfeited to the vendor for the use of the property or as liquidated damages. When the question has been squarely raised and considered by the courts as in the case now before us, they have almost universally held that to entitle the vendor to retain money as his own paid Mm on a conditional sale, where he terminates the contract by retaking the goods on default of the buyer, the contract must contain an express clause forfeiting such payments.- In view of the many cases to be found in support of this proposition, we do not feel called upon to discuss the question further.
Since appellant’s contract did not contain a forfeiture clause of any kind and it took possession of the property under the contract, it selected the remedy which it considered most beneficial, and can not now complain because that election requires it to account to appellee for the payments made to it less its damages sustained. It follows therefore that the decision of the trial court upon the counterclaim is sustained by the evidence and is not contrary to law.
Judgment affirmed.
Note. — Reported in 106 N. E. 541. As to what constitutes a conditional sale, see 46 Am. St. 295 ; 94 Am. St. 234. As to purchaser’s