56 Ind. App. 520 | Ind. Ct. App. | 1914
On April 12, 1910, the Valley Paper Company entered into a contract with appellant whereby the latter was to ship the former eighteen tons of Mitscherlict unbleached sulphite, an imported material used in the manufacture of paper. The Valley Paper Company received the shipment of sulphite in accordance with the contract about April 20, 1910, and on April 25, 1910, the treasurer of the paper company filed a complaint and petition for the appointment of a receiver for the corporation on the grounds of insolvency. The Valley Paper Company filed its answer admitting that it was insolvent and a receiver was immediately appointed. On May 4, 1910, appellant brought this suit against the receiver to replevy the shipment of sulphite. An affidavit for delivery was filed with the complaint and, proper steps being taken, the material was turned ever to appellant. The issues formed by the complaint and a general denial were tried by the court which found that the receiver was the owner of the property in question and entitled to the possession thereof, that the property should be returned to the receiver and that its value was $1,126.50. A motion for a new trial was filed by appellant and overruled and judgment was rendered m favor of appellee.
The issues of fact in this case were tried by the court without the intervention of a jury. The court failed to find as a fact that the agents of the paper company did not intend to pay for the property purchased at the time it was ordered, and this court can not say as a matter of law that the inference of fact drawn by the court was not justified by the evidence. The facts disclosed by the evidence were such that fair and reasonable minds might differ as to the proper inference to be drawn therefrom. Where the. undisputed facts are of such a character that two opposite inferences may be rightly and reasonably drawn therefrom by fair and reasonable minds, and where the court or jury which tried the issues of fact below has found a fact as a result of one of such inferences, this court can not set aside such finding on the evidence.
It would not be profitable to review the evidence at length. It is sufficient to say that the evidence has been carefully considered and the court regards it as amply sufficient to sustain the finding. Judgment affirmed.
Note. — Reported in 105 N. E. 784. As to rescission of sale for fraud in purchase on credit, see 18 Am. St. 362. On the right to rescind contract of sale for fraud in obtaining credit, see 14 L. R. A. 264. As to the title secured by one purchasing goods with knowledge that he can not pay for them, see 44 L. R. A. (N. S.) 1; 23 L. Ed. U. S. 993. See, also, under (1) 35 Cyc. 134; (2, 3) 35 Cyc. 157; (4) 3 Cyc. 363; (5) 38 Cyc. 1532.