Firestone Tire & Rubber Co. v. Anderson

• Decision Date: 21 December 1920
• Docket Number: No. 33679.,33679.
• Citation: 190 Iowa 439,180 N.W. 273
• Court: Iowa Supreme Court
• Parties: FIRESTONE TIRE & RUBBER CO. v. ANDERSON.

190 Iowa 439

180 N.W. 273

FIRESTONE TIRE & RUBBER CO.

v.ANDERSON.

No. 33679.

Supreme Court of Iowa.

Dec. 21, 1920.

Appeal from District Court, Mills County; E. B. Woodruff, Judge.

Action in replevin resulted in a verdict for defendant, and judgment thereon. Plaintiff appeals. Reversed.Montgomery, Hall & Young, of Omaha, Neb., and W. S. Lewis, of Glenwood, for appellant.

Genung & Genung, of Glenwood, for appellee.

LADD, J.

[1] In the fall of 1918, one Galliher, by oral contract, bargained for the personal property in, and leased, defendant's garage. He went into possession, and on February 18, 1919, ordered of plaintiff company 27 automobile casings, and 18 tubes, at the total price of $645.10. About the 6th of March following, Galliher yielded possession of the garage, including the tubes and all but 3 of the casings, which had come a few days before, to defendant. Whether in so doing Galliher informed defendant that these belonged to plaintiff, or directed him to invoice the tires and credit him with their value, is in dispute. Plaintiff contended that the proposed sale to Galliher was never completed, while defendant insists that the transaction amounted to a conditional sale. The trial court ruled that there was a conditional sale, and submitted the cause to the jury on that theory. We find no evidence in the record tending to sustain this view. If there was a completed sale, it was absolute. The order for the goods was obtained by one of the plaintiff's salesmen, being indorsed below the items and prices:

“Taken on trade acceptance basis with tax. H. A. Galliher, Purchaser.”

This was forwarded to its branch house at Omaha, Neb., where its agent caused the goods to be shipped to the purchaser and mailed the bill of lading, to which was attached an invoice of the goods and trade acceptance, and mailed to Galliher. Following is the form made use of:

Trade Acceptance.

+---------------------------+
                ¦No. ______.¦______, 191--. ¦
                +---------------------------+
                

______ after date pay to the order of ourselves ______ dollars in settlement of the purchase of goods as billed in our invoice No. ______, dated ______.

The Firestone Tire & Rubber Co.

________

To ________.

________.

The blanks were filled out and stamped across the face:

Accepted. Date ______. [Date accepted.] 191--. Payable at [designate bank]; location of bank [place of payment]; signature [signature of acceptor].

Accompanying this was a letter instructing Galliher that--

“Upon the receipt of our invoice and bill of lading as evidence of shipment, you are to sign the trade acceptance made payable to your bank on May 10, 1919, and return to this branch at once. The amount of trade acceptance will be net, all discounts having been deducted.”

The acceptance was neither signed nor returned, nor cash remitted instead. Plaintiff's agent testified that the forms used were those approved by the federal reserve banks; that he knew--

“what is meant by trade acceptance in the automobile trade. A trade acceptance terms are an order, a contract, or an arrangement whereby the purchaser agrees to sign a draft, payable at a certain time on receipt of B/L, providing that the goods were shipped, the signing of which draft constitutes the changing of ownership and acknowledges the entire transaction as correct, or, if he prefers otherwise, he may pay the cash, which will answer the same purpose. Q. In the automobile trade, what is the custom as to the ownership of goods shipped on trade acceptance? A. The ownership is passed at the time the trade acceptance is signed, or at the time payment is made instead of the acceptance being signed.”

A trade acceptance with the B/L is forwarded immediately after the goods are shipped, but the sale is not effected until the goods are paid for or the draft on the local bank is accepted by the purchaser. Such a sale, when made, is without condition; but until payment, either in cash or acceptance required, the contract was conditional; that is, the sale was subject to a condition...