66 Ind. App. 156 | Ind. Ct. App. | 1917
The sole question presented by this appeal is the sufficiency of the evidence to sustain the decision. The evidence was in substance as follows: Appellee executed to F. M. Tiller a certain contract dated at Louisville, Kentucky, September 3,1912, by which he agreed to pay to the latter at his office in Louisville $650 as follows: $325 by the delivery of a piano to be taken at that price, balance $10 per month, with interest on the deferred payments at six per cent. The contract recited that the consideration for appellee’s agreement to pay was Tiller’s agreement to sell and deliver to him a. certain Kimball player piano, the use of which Tiller agreed to let to appellee temporarily on terms substantially as follows: That the instrument should remain Tiller’s property until payment in full; that in case appellee should make default in paying the installments, or any of them, or should sell or remove the instrument from his residence in Louisville, or should attempt to sell or dispose of it, or attempt to remove it as aforesaid, without the written consent of Tiller or assigns, or if Tiller should feel insecure or unsafe, then Tiller or assigns should have the right, without notice or demand, to take immediate ■ possession of the instrument, and in case of the exercise of such right, all payments on the purchase price should become the property of Tiller or assigns in consideration of the use or rental of the instrument while in appellee’s possession, provided that Tiller
Tiller at the time of the execution of the contract was in fact the agent of the W. W. Kimball Company of Chicago and, contemporaneously with its execution, he indorsed it to such company. Tiller delivered the player piano to appellee, who thereupon delivered to Tiller the piano mentioned in the contract, accepted as a payment of $325 on the purchase price of the player. Appellee thereafter paid on the balance of the purchase price $230, the last payment having been made in December, 1914. He made -no further payments. There remained unpaid $95 and interest under the contract. Some time after executing the contract appellee moved to Indianapolis, taking the player piano with him. Prior to April 14, 1915, he wrote to Tiller that he would be able to pay the full balance by May 1,1915. Under date of April 14, 1915, Tiller responded that payment would be expected by the date named. At some time prior to April 27,1915, appellee moved from his residence on Cooper street to some other portion of the city, leaving the player piano in the possession of Ginsberg, a neighbor living near his former residence, as he did not have room for it in his new residence. He had an arrangement with Ginsberg, however, that if he completed his payments Ginsberg would retain the player, exchanging to appellee a building lot therefor. He notified Tiller that he had changed his residence in Indianapolis, but did not notify him that he had placed the player in Ginsberg’s possession. Prior to April 27, 1915, appellee had transacted with
The judgment is reversed, with instructions to sustain appellants’ motion for a new trial.
Note. — Reported in 117 N. E. 933. Conditional sales: effect of retaking property on the rights and remedies of parties, L. R. A. 1916A 915. See under (1) 35 Cyc 666; (5) 35 Cyc 696.