18 N.E. 16 (Ind. 1888), 13,376, Thompson v. Peck

• Docket Nº: 13,376
• Citation: 18 N.E. 16, 115 Ind. 512
• Opinion Judge: Mitchell, J.
• Party Name: Thompson et al. v. Peck et al
• Attorney: G. M. Overstreet, A. B. Hunter, R. M. Miller and W. H. Barnett, for appellants. S. P. Oyler, W. A. Johnson and Smith, Kellogg & Wells, for appellees.
• Case Date: September 26, 1888
• Court: Supreme Court of Indiana

Page 16

18 N.E. 16 (Ind. 1888)

115 Ind. 512

Thompson et al.

v.

Peck et al

No. 13,376

Supreme Court of Indiana

September 26, 1888

From the Johnson Circuit Court.

The judgment is reversed, with costs.

G. M. Overstreet, A. B. Hunter, R. M. Miller and W. H. Barnett, for appellants.

S. P. Oyler, W. A. Johnson and Smith, Kellogg & Wells, for appellees.

OPINION

Page 17

[115 Ind. 513] Mitchell, J.

This was an action in replevin to recover the possession of personal property, consisting of ready-made clothing of the alleged value of $ 5,000, of which the plaintiffs claimed they were the owners and entitled to the possession, and which they charged that the defendant wrongfully detained from them to their damage, etc.

The complaint was in three paragraphs, and while the second and third assumed to set forth the particular manner in which the defendants obtained possession of the goods in controversy, they are nevertheless complaints in replevin, and in legal effect the same as the first paragraph.

It appeared that the plaintiffs were partners, doing a wholesale [115 Ind. 514] or jobbing business in the city of Syracuse, New York, under the firm name of W. S. Peck, Bro. & Co., while the defendants, Dalmbert & Sergeant, were conducting a general retail store at Edinburgh, Indiana. The latter firm became customers of the former in 1882, after which they purchased bills of goods varying in amounts several times each year, generally at the solicitation of one of the plaintiffs, who was the travelling salesman of the firm.

The evidence tended to show that the plaintiffs sold the defendants a bill of goods on the 24th day of July, 1884, amounting to $ 1,987, and that they sold them another bill in January, 1885, amounting to $ 1,824, another of $ 1,471.50 in July, 1885. For the bill sold in July, 1884, including some interest accrued on the account, the plaintiffs received three promissory notes, executed by the defendants, Dalmbert & Sergeant, payable in a bank in this State, for $ 666 each, dated the 27th day of March, 1885, due in two, three and four months, respectively. Two of these notes were subsequently paid. The other has not been paid. For the goods sold in January, 1885, three notes were executed by Dalmbert & Sergeant, dated November 1st, 1885, due in two, three and four months, respectively. The bill sold in July, 1885, remained in an open account. On the 25th day of November, 1885, Dalmbert & Sergeant, finding themselves in failing circumstances, and unable to pay their debts, after having the day previous given a chattel mortgage on their stock, and otherwise secured several of their creditors, made a voluntary assignment under the statute for the benefit of all their creditors...