Farmers National Bank v. Coyner

• Decision Date: 25 June 1909
• Docket Number: 6,496
• Parties: FARMERS NATIONAL BANK v. COYNER ET AL
• Court: Indiana Appellate Court

88 N.E. 856

44 Ind.App. 335

FARMERS NATIONAL BANK v. COYNER ET AL

No. 6,496

Court of Appeals of Indiana

June 25, 1909

Rehearing denied October 7, 1909.

From Clinton Circuit Court; Joseph Claybaugh, Judge.

Action by the Farmers National Bank, of Sheridan, Indiana, against William S. Coyner and another. From a judgment for defendants, plaintiff appeals.

Reversed.

Harry C. Sheridan, William S. Christian, Pearson & Pearson and Earl F. Gruber, for appellant.

Doan & Orbison and Boulden & Boulden, for appellees.

OPINION

HADLEY, C. J.

This was an action brought by appellant against appellees for damages for conversion. At the conclusion of appellant's evidence, upon motion of appellees, and over the objection of appellant, the court instructed the jury to return a verdict for appellees, which it accordingly did. Appellant filed a motion for a new trial, which was overruled, and judgment was rendered in favor of appellees. The ruling on its motion for a new trial is assigned as error. The only questions presented are that the court erred in giving the instruction before mentioned, and that the evidence is insufficient to sustain the verdict. Both will be considered together.

It was shown by the evidence that appellee Coyner was the owner of a certain described farm; that appellee Owen was his tenant that on February 13, 1903, appellee Coyner sold to John C. Newby, president of appellant bank, for the bank, "one hundred thirty-six dollars and fifteen cents' worth of the landlord's portion of the crop raised on Coyner's farm;" that said sale was evidenced by a written bill of sale, and the purchase price was paid at that time; that the crops were not planted at the time of the sale. The bill of sale did not specify what the crop was to consist of, nor when it should be raised. It was, however, shown by the evidence that in 1903 corn was raised on the land described, and it was not shown that any other crop was raised. It was also shown that Coyner directed his tenant to gather the landlord's portion of the corn raised in 1903 on the tract described, and to place it in a crib separate from corn raised from other tracts belonging to Coyner, which the same tenant had rented, saying: "The bank might get that corn." Afterwards Coyner had a conversation with John C. Newby, representing the bank, in which he, for the bank, demanded the corn, and Coyner said: "I do not want you to take that corn, I want it to feed, and if you will give me ten days to make a note I will do that." To which Newby replied: "All right, we do not want the corn, what we want is the money." To which Coyner replied: "Now if I do not make arrangements in ten days about this note you can come and take that corn to the elevator and allow me the market price." In this conversation Coyner also said the corn was in the crib there on his farm, and designated the crib. After the expiration of ten days, Coyner having failed to give his note for the corn, appellant sent teams out to haul in the corn. The corn was shown to the representative of appellant by Owen, in the crib, as described. There was about four hundred bushels of it and it was worth thirty-two or thirty-three cents a bushel at the crib. But Owen, representing Coyner, refused to let them have the corn, saying that Coyner needed it to feed. Owen and Coyner were then ordered not to dispose of the corn, as it belonged to the bank. Afterwards Owen, at the direction of Coyner, fed the corn to stock belonging to Owen and Coyner.

The rules by which we are to be governed in this case are clearly laid down in the case of Haughton v. Aetna Life Ins. Co. (1905), 165 Ind. 32, 73 N.E. 592, where the court say: "The Constitution of this State (Art. 1, § 20) provides: 'In all civil cases, the right of trial by jury shall remain inviolate. Courts have guarded this right, with scrupulous care, against any encroachment. In all cases triable by jury the jurors are the sole and exclusive judges of the facts proved, and, of necessity, therefore, of the credibility of witnesses, and of the weight to be given to their testimony. Where upon a material point there is a failure of proof in the evidence of the party having the burden of an issue, the court may, as a matter of law, instruct the jury in favor of the other party to such issue. Where the facts are admitted by the pleadings or otherwise, or where the evidence upon the controlling question is documentary, and its interpretation and construction a matter for the court, and but one conclusion reasonably deducible therefrom, then in such cases the court may, as a matter of law, direct a verdict in accordance with the evident facts, and in favor of the party having the affirmative of the issue. But where a determination of the issue involves the credibility of witnesses, and rests upon inferences and deductions to be drawn from facts proved, it will be an invasion of the province of the jury for the court to direct a verdict." See, also, Hamilton v. Henneman (1898), 20 Ind.App. 16, 50 N.E. 43; Vance v. Vance (1881), 74 Ind. 370; Adams v. Kennedy (1883), 90 Ind. 318.

In considering a motion for such instruction, the court is bound to accept as true all facts the evidence tends to prove and all inferences reasonably deducible therefrom against the party so moving. Hall v. Terre Haute Electric Co. (1906), 37 Ind.App. 43; Roberts v. Terre Haute Electric Co. (1906), 37 Ind.App. 664, 76 N.E. 323; Curryer v. Oliver (1901), 27 Ind.App. 424, 60 N.E. 364.

The question at issue between the parties at bar was whether appellant ever became possessed of the title to the corn in question. It is insisted by appellees that the title did not pass, for the reason that the corn was not specifically designated by the owner and set apart for the purchaser. It is a general rule established by many authorities that in case of sale of personal property, where any act remains to be done before the sale is complete, the title remains in the seller. Bertelson v. Bower (1882), 81 Ind. 512; Morgan v. East (1890), 126 Ind. 42, 9 L. R. A. 558, 25 N.E. 867; Benjamin, Sales (3d Am. ed. by Bennett), § 953.

The expression generally used, "that if any thing remains to be done by the seller, the title does not pass," has been explained...