American Aggregates Corp. v. Wente
| Decision Date | 01 June 1934 |
| Docket Number | No. 14610.,14610. |
| Citation | 190 N.E. 552,100 Ind.App. 59 |
| Parties | AMERICAN AGGREGATES CORPORATION v. WENTE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; John W. Kern, Judge.
Action by the American Aggregates Corporation against Otto E. Wente. From a judgment granting plaintiff partial relief, plaintiff appeals. On motion to dismiss the appeal.
Motion denied, and judgment affirmed.
Clinton H. Givan and Julius C. Travis, both of Indianapolis, for appellant.
Carey & Cox, of Indianapolis, for appellee.
Appellant corporation was a wholesale dealer in motortrucks. Its headquarters were in Greenville, Ohio.
Robert E. Huffard and others formed the Huffard Ruggles Company in the summer of 1928. Said firm was the Indianapolis distributer for appellant's trucks until about March, 1929, when the name of the firm was changed to “Huffard Motor Truck Company.” Said Huffard Motor Truck Company continued to act as appellant's distributer until December, 1929, when the R. B. Huffard, Inc., was formed and took over said agency and held it until March 18, 1930. Said Robert E. Huffard was the actual head of all said distributing firms, and handled most of the business himself.
Appellant delivered a certain truck of Huffard Motor Truck Company while said company was such distributer, and delivered another truck to R. B. Huffard, Inc., while it was such distributer. Said Robert E. Huffard, representing said distributing agencies respectively, sold both of said trucks to appellee Otto E. Wente.
Huffard, as a representative of one or the other of said distributing firms, sold appellee four other trucks.
Appellant corporation filed suit against appellee to replevy all of said trucks, the complaint being in the usual form of complaint for replevin. Appellant obtained possession of the trucks by filing replevin bonds. Appellee filed an answer in general denial, and the cause was submitted to the court for trial on the issues formed by said pleadings.
The court found for appellant as to said four trucks, and for appellee as to said two trucks, and rendered judgment accordingly, by which judgment appellant was ordered to return said two trucks to appellee or pay appellee $6,000. Appellant seasonably filed a motion for new trial, which was overruled, whereupon appellant perfected this appeal, assigning said ruling on its motion for new trial as its sole error relied upon for reversal.
Appellee filed a motion to dismiss this appeal. It will serve no good purpose to set forth the grounds of said motion. The court, having considered said motion to dismiss this appeal, now overrules the same.
The causes for new trial assigned in the motion therefor, and discussed in appellant's brief, are: (1) The decision is not sustained by sufficient evidence; (2) the decision is contrary to law; (3) the court erred in excluding Appellant's Exhibit XI from the evidence.
The evidence was conflicting as to whether the two trucks were sent by appellant to its distributer on consignment or on open account. Evidence introduced by appellant tended to show that the distributer had no right to sell the trucks without an approval of the sale by appellant, that the sale by the distributer to appellee was made without appellant's approval, that appellant had retained the title to the trucks; hence appellee had acquired no title to them. Evidence introduced by appellee tended to show that there was no agreement between appellant and its distributer that appellant retained title to the trucks, that the transaction between them was not a sale on consignment, but was a sale on open account, and therefore appellee acquired title through the distributer.
[1] That this court will not reverse a judgment for insufficiency of the evidence to sustain the decision, where the evidence on the material question or questions of fact is conflicting, is so elementary that citation of authorities to support the proposition is not necessary. We have read the evidence and find not only that there is a conflict in the evidence on the question of whether or not the transaction between appellant and its distributer was a consignment or a sale on open account, but that the evidence as a whole strongly indicates that the transaction was a sale on open account.
[2] Exhibit XI was a written instrument which the distributer's truck driver signed when he got one of said trucks from appellant's factory. It was entitled “Purchaser's Proposal,” and covered...
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