64 Ind. App. 285 | Ind. Ct. App. | 1917
This suit was brought by appellant against appellee Cline on August 8,1914, to replevy certain merchandise alleged to be the property of appellant and to be unlawfully detained in the possession of said Cline in Lake county, Indiana. On September 18, 1914, appellee Surprise, as trustee in bankruptcy of appellee Cline, filed an intervening petition in this cause in the Lake Superior Court, was made a party defendant to the suit, and thereafter filed an answer to the complaint in general denial. The case was tried by the court and
The grounds for a new trial presented and urged for reversal are: (1) That the decision of the court is not sustained by sufficient evidence; and (2) the decision is contrary-to law.
Henry W. Schoenfeld, a witness on behalf of appellant, testified, in substance, as follows: “I am treasurer of the plaintiff, a corporation engaged in the wholesale clothing business in Chicago, Ill. Formed the acquaintance of Samuel T. Cline the latter part of August, 1913, at plaintiff’s place of -business in Chicago. He informed me he was going to put in a stock of clothing in a department store in Gary, Indiana, and that he desired to purchase a bill of clothing from the company. He said he could only raise about $1,500 and I took the matter under advisement and told him to return in a day or so. He came back and I informed him thht in view of the fact that he had so small an amount of money and would need a large amount of clothing, we decided to let him select the goods and would send them to him,- the title to the goods ‘to remain with us until your account is entirely paid for.’ He said that would be perfectly satisfactory and he would come in a few days and make his selections. He afterwards came in and made selections and goods were shipped to him from time to time as he purchased them. He came in every week or two. Mr. Cline was in the office in February, 1914, and I dictated a paper which he signed.”
The instrument written on the letter head of “Levin
“Chicago, February 6, 1914.
“This is to certify that I have received from Levinson, Schoenfeld & Yatter Co., merchandise invoice dated from Aug. 30 to date and in the event said Levinson, Schoenfeld & Yatter Co. become dissatisfied with my payments therefor, I authorize them to re-take said merchandise out of my store • and charge me with all reasonable and necessary expense in so doing.
“[Signed] S. T. Cline.
“Witness:
J. J. Narten.”
“Cline's payments became unsatisfactory and we informed him we could see no ultimate success for him and demanded that he send our goods back. He refused to do so and did not send them back. We then brought this suit and at the time there was • due us about $3,600. The goods we received back from the sheriff are worth about $1,200. The property taken by the sheriff was our property, but not half the property delivered to Cline.”
On cross-examination the witness testified that when he made the. arrangement with Cline to sell goods to him he did not know what particular goods he would buy and did not then show him any goods. A part of the goods sold him had to be manufactured. Mr. Cline bought the goods to be sold at retail in his store at Gary, Indiana, and “we rendered a bill with each shipment. When the sheriff took the goods from Cline, I don't know whether they, were of the first consignment or what consignment. I know they were of our goods of prior shipments. I do not know when any of the goods taken by the sheriff were shipped to Cline. The only conversation I had with Cline about the title was when he came back the second time before he obtained the goods and in February when I told him about
There was also evidence tending to show that Cline’s attorney sent a letter to creditors to obtain an extension of the time for paying his bills and that before the trial appellant’s attorney was duly served with a notice to produce all notes given to Cline since August, 1913; all letters and correspondence from Cline; the journal, ledger and other books of appellant which show transactions had between plaintiff and S. T. Cline from August 1, 1913, to September, 1914. In response to the said notice a statement was produced and offered in evidence showing an open account against S. T. Cline in favor of “Levinson, Schoenf eld & Yatter Co.” of Chicago, Ill.
The account contains fifteen items charged against Cline from August 30, 1913, to April 8, 1914, aggregating $5,322.50, also-fifteen credit items aggregating $1,694.27, the first of which bears date of October 15, 1913, and the last June 18, 1914. The account indicates a balance against Cline of $3,628.23, and has nothing to distinguish it from the usual open, running account.
Letters were produced and offered in evidence as follows :
“Messers. Levinson, Schoenfeld & Yatter Co., Chicago, 111.
“Gentlemen:—
“In re S. T. Cline, Gary, Ind.
“You no doubt are informed of the status of the above account. He wrote us on the first inst. that he would remit in a very short time, instead of which we received a letter from his attorney.
“What form of adjustment would you advise in the matter? We will be pleased to hear from you. “Yours Very Truly,
“Samuel Rosenthal & Bros.,
“Credit Dept.”
“Sehoenfeld-Yatter Co.,
Successors to
Levinson, Schoenfeld & Yatter Co. “Telephones Wabash 3336 Auto 58-295 “S. W. Corner Market & Van Burén Streets. “Makers of XL. All Clothes
“Chicago, July 13, 1914.
“S. Rosenthal & Bros.
New York City.
“Gentlemen:
_ “We are in receipt of yours of the 11th inst., and in reply wish to state that we have watched this account very closely. The conditions have been so terribly bad at Gary that the merchants there are in a very precarious condition.
“We, ourselves, have accepted the extension proposition in this matter, as feel when things brighten up that this party will make every effort possible to take care of his obligations.
“Yours very truly,
“Sehoenfeld-Yatter Co.”
The foregoing statement is the substance of the evidence relied upon by appellant to sustain its contention that the undisputed evidence shows that the goods in controversy were delivered to appellee Cline under a contract of conditional sale by which the title to the goods did not pass to him until paid for and also that the goods taken under the writ of replevin Were the
The court did not err in overruling the motion for a new trial. Judgment affirmed.
Note. — Reported in 115 N. E. 787. Conditional sales: acceptance of purchase money note from vendee, effect, Ann. Cas. 1916A 331. See under (4, 5) 35 Cyc 702.