Cable Co. v. McElhoe
| Citation | 58 Ind.App. 637,108 N.E. 790 |
| Decision Date | 06 May 1915 |
| Docket Number | No. 8595.,8595. |
| Parties | CABLE CO. v. McELHOE. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Warren County; Burton B. Berry, Judge.
Action by the Cable Company against Harry McElhoe. From a judgment for defendant, plaintiff appeals. Reversed, with instructions.Stansbury & Billings, of Williamsport, and J. W. Whicker, of Attica, for appellant. Charles R. Milford, of Attica, for appellee.
Appellant brought this action in replevin to recover from appellee the possession of a piano, hereinafter described. Judgment was rendered in favor of appellee, pursuant to conclusions of law stated on a special finding. The questions of the sufficiency of the evidence to sustain the decision and of the correctness of the conclusions of law are properly presented. The material facts, as shown by the evidence are substantially as follows:
January 4, 1908, appellant sold and delivered to Charles T. Delmar, at his residence in Bloomington, Ill., a Wellington piano, described as “style A, mahogany, numbered 109165,” for the agreed price of $200, of which Delmar paid $5 in cash. At the time of the purchase Delmar executed to appellantat Bloomington a chattel mortgage on the piano, to secure the payment of the balance of the purchase money at appellant's place of business in Chicago, Ill., in monthly payments of $5. The mortgage contained a number of conditions, on the breach of any of which appellant was authorized by the terms of the mortgage to declare the debt due, and to repossess itself of the piano, and sell it for the purpose of collecting the balance of the purchase money, or to foreclose the mortgage to that end. Among such conditions was one to the effect that Delmar should not move the piano from Bloomington without appellant's written consent. The mortgage was not acknowledged or recorded. After its execution, and before the maturity of the first monthly installment, Delmar went to Attica, Ind., apparently for the purpose of living there indefinitely, leaving his wife and the piano temporarily at Bloomington. Delmar, being desirous of moving the piano to Attica, but restricted by the provisions of the mortgage, negotiated with appellant, and arrived at an agreement that the piano might be moved, provided Delmar executed an Indiana contract to take the place of the mortgage. Thereupon Delmar by letter authorized his wife to execute such a contract for him, which she did. The contract was delivered and accepted by appellant, and is headed, “Attica, Indiana, Jan. 31, 1908,” and is signed, “Charles F. Delmar, per Mrs. Mabelle A. Delmar, Address, Attica, Indiana.” The contract was, in fact, signed and delivered at Bloomington, Ill. It recites, in substance, that Delmar received from appellant, under conditional contract of sale, as recited in the contract “one Wellington style A, mahogany, No. 109,165,” the contract price being $200, of which he had paid $5 January 4, 1908, and the balance of which he agreed to pay in monthly installments of $5, payments to be forwarded to appellant at Chicago, by money order, registered letter or draft, “or payable on presentation of this contract at -, state of Indiana, when due, without notice, waiving all valuation and appraisement laws of the state of Indiana or the United States.” The contract contained the following further provision:
It was agreed between appellant and Delmar that the chattel mortgage should become void on the execution of the contract.
[1] Notwithstanding the defect in the description, the property described by the contract is sufficiently identified. After the execution of the contract Delmar caused the piano to be moved to his home at Attica, Ind. Subsequently he became indebted to J. Frank McDermond, a merchant, in the sum of $67.56, for goods bought from his store, and thereafter, on May 19, 1909, being about to move from Attica, he executed to McDermond a note in said sum, and a chattel mortgage on the piano to secure it. This mortgage is in the usual form, and contains the following provision:
“It is understood that this bill of sale is junior to a bill of sale heretofore executed on the same.”
The piano was delivered into the possession of McDermond on the execution of the mortgage, and thereafter, on July 16, 1910, he sold it, pursuant to the terms of the mortgage, to appellee, for a sum sufficient so that after paying McDermond's claim and the expense of the sale there was an overplus of $23.14, which was paid to Delmar through his attorney. There was due appellant from Delmar on said contract about $134 when this action was commenced.
The foregoing facts shown by the evidence are included substantially in the finding. In addition, the court found that McDermond did not have actual notice or knowledge of the existence of either of said writings executed to appellant, and that appellant did not take possession of said instrument after it was delivered to Delmar January 4, 1908, and before the execution of the contract dated January 31, 1908. The finding contains the following additional matters stated as facts: Specifications 14 and 15, that the instruments dated January 4 and 31, 1908, respectively, are chattel mortgages; 16 and 19, that, under the laws of Illinois, said chattel mortgage dated January 4th, by reason of its not having been recorded, is void as against subsequent bona fide purchasers and creditors, even if they had actual notice and knowledge of the same; 17, that, according to the laws of the state of Illinois, the instrument dated January 31, 1908, is void, because not recorded; 20, that under such laws, said instrument is void as to subsequent bona fide purchasers and creditors, even if they had actual notice of the same; and 18, that under such laws as they were January 31, 1908, and since a conditional sale of property whereby the title of the vendor is reserved and retained in him until the purchase price is paid is void as against subsequent bona fide purchasers and creditors, whether recorded or not. The laws of Illinois claimed to be applicable were not pleaded, proven, or included in full or in substance in the findings. The conclusions of law are to the effect that at the commencementof the action appellee was the owner and in possession of the piano; that appellant take nothing by the action; and that appellee recover costs.
[2][3] There is no controversy that the transaction of January 4, 1908, amounted to a sale, and that thereby the title to the piano vested in Delmar. The instrument executed that day, conceded to be a chattel mortgage, created or reserved in favor of appellant a lien on the piano to secure the payment of the balance of the purchase money, and also placed some restrictions on Delmar respecting his control of the instrument. Among such restrictions was the condition prohibiting the removal of the piano from Bloomington. Eventually it suited Delmar's convenience to remove it to Indiana, but such condition obstructed him in carrying out his purpose. The situation then arising was one respecting which the parties might contract. Thereupon, and before the interests of third persons became involved, in consideration that appellant would surrender the advantages that it had by virtue of said condition and others contained in the chattel mortgage, Delmar was willing to, and did, execute the contract of January 31st, superseding the chattel mortgage. This contract sepcified that the title should remain in appellant until the piano was paid for. There is no reason why appellant and Delmar may not have entered into a valid contract after the transaction of January 4th by which the title to the piano should revest in appellant. In order that the title might so revest under such a contract, an actual delivery of the piano to appellant would not have been necessary. A sale of personal property may be complete so as to pass title without a delivery. Leffler v. Watson, 13 Ind. App. 176, 40 N. E. 1107, 41 N. E. 467;Bertelson v. Bower, 81 Ind. 512. These observations, however, are subject to the provisions of the statute to the effect that a sale of personal property, in the absence of an immediate delivery, is presumed to be fraudulent as against creditors under certain circumstances (section 7470, Burns 1914), and subject also to certain provisions of the statute of frauds, requiring contracts for the sale of personal property under certain circumstances to be in writing. Section 7469, Burns 1914. Such presumption, however, is by no means conclusive, and the statute of frauds is not applicable here. It may be said also that there is nothing to indicate that in the transaction of January 31st the parties were actuated by any purpose other than an honest one. Having repurchased the piano, appellant might have then sold it to Delmar, reserving title. The parties here, however, attained the result of the two transactions by means of one; that is, by the contract of January 31st appellant accomplished the...
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- The Cable Company v. McElhoe
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Miller v. First Nat. Bank Of Madison
...554. The only other case we have been able to find which appears directly to bear upon the point is an Indiana case (Cable Co. v. McElhoe, 58 Ind. App. 637, 108 N. E. 790), which supports the previous ruling of this court as now adhered to. The third division of the syllabus in that case is......