Gaar, Scott & Co. v. Fleshman

• Decision Date: 25 April 1906
• Docket Number: 5,389
• Court: Indiana Appellate Court
• Parties: GAAR, SCOTT & CO. v. FLESHMAN

77 N.E. 744

38 Ind.App. 490

GAAR, SCOTT & CO. v. FLESHMAN

No. 5,389

Court of Appeals of Indiana

April 25, 1906

Rehearing denied June 28, 1906, Reported at: 38 Ind.App. 490 at 494.

From Harrison Circuit Court; C. W. Cook, Judge.

Action by Gaar, Scott & Co. against Andrew J. Fleshman. From a judgment for defendant, plaintiff appeals.

Reversed.

Murat W. Hopkins, Russell T. MacFall and Thomas J. Wilson, for appellant.

William Ridley, for appellee.

OPINION

ROBY C. J.

A demurrer for want of facts was sustained to appellant's amended complaint. It refused to plead further and appeals from the judgment thereupon rendered. The action is founded upon an instrument in writing, by which appellee ordered from appellant a certain machine, agreeing to receive the same, subject to the conditions of a printed warranty, to pay freight and charges from Richmond, Indiana and to pay, by note, at the time and place of delivery, $ 463. It also contained stipulations as follows:

"Machinery to be loaded on cars at Richmond, Indiana, on or about May 1, 1903, and shipped to A. J. Fleshman, consignee, at Corydon, Indiana station, County of Harrison, State of Indiana. * * * The title to said goods shall not pass until settlement is concluded, and accepted by Gaar, Scott & Co. * * * This order is not subject to countermand."

It is averred in detail that appellant complied with the terms of said agreement upon its part in all things, but that appellee refused to receive said machine on its arrival at Corydon, refused to execute his note and mortgage in payment therefor, as provided in the contract, or to pay freight and charges; that appellant thereupon tendered said machine to him, demanded that he pay for the same in the manner specified by the contract, but that appellee refused and refuses to do so; that appellant immediately thereafter stored said machine as appellee's property, has ever since and now holds it in storage as his property, and notified him thereof; that appellee is indebted to appellant in the sum of $ 463, and the further sum of $ 30 freight paid by it, which sums are due and unpaid.

Appellant's proposition for reversal is that when the vendor has executed a contract by delivery or tender of the chattel sold, and the purchaser has refused to execute the contract by acceptance and payment, the vendor may hold the chattel for the purchaser and recover the contract price. Gardner v. Caylor (1900), 24 Ind.App. 521, 56 N.E. 134; Rastetter v. Reynolds (1903), 160 Ind. 133, 66 N.E. 612; Dill v. Mumford (1898), 19 Ind.App. 609, 49 N.E. 861. This proposition is not controverted but its applicability is denied. The exception claimed is based upon the clause of the contract by which it is stipulated that title shall not pass until settlement is concluded and accepted.

It is established in this State that "in all cases of contracts for the sale of personal property, when it has any market value, the vendor, before he can recover from the vendee the contract price, must have delivered the property to the vendee, or have done such acts as vested the title in the vendee, or would have vested the title in him, if he had consented to accept it; for the law will not tolerate the palpable injustice of permitting the vendor to hold the property and also recover the price of it." Pittsburgh, etc., R. Co. v. Heck (1875), 50 Ind. 303, 19 Am. Rep. 713. And see Indianapolis, etc., R. Co. v. Maguire (1878), 62 Ind. 140, 147; Dwiggins v. Clark (1884), 94 Ind. 49, 52, 48 Am. Rep. 140; Dill v. Mumford, supra; Ridgley v. Mooney (1896), 16 Ind.App. 362, 45 N.E. 348; Browning v. Simons (1897), 17 Ind.App. 45, 46 N.E. 86; Gardner v. Caylor, supra.

By the stipulation in the contract, title to the goods contracted for remained in appellant until settlement was concluded and accepted by it. So that unless such stipulation has been waived the measure of damages will be the actual injury sustained by appellant on account of appellee's breach of contract. Fell v. Muller (1881), 78 Ind. 507, 513; Gardner v. Caylor, supra; Shipps v. Atkinson (1894), 8 Ind.App. 505, 36 N.E. 375; Dill v. Mumford, supra; Ridgley v. Mooney, supra. There is in the decisions of other courts than our own a diversity of opinion as to the vendor's right to recover the contract price when, by the contract, title remains in him until payment. 24 Am. and Eng. Ency. Law (2d ed.), 1115, 1118, 1149, 1150.

The contract is one for the sale of goods. For its breach the vendee is liable, but he is not liable to pay the full purchase price, unless title has been transferred. In Colles v. Lake Cities Electric R. Co. (1899), 22 Ind.App. 86, 53 N.E. 256, this court said: "The property was to remain in the seller and therefore there was to be no complete absolute sale until the acceptance and payment." In that case the option of accepting the property and thereby transferring title was in the vendee, but the effect of the nontransfer of title upon the right to recover the contract price is not different than in the case at bar. In that case the vendee had it in his power to prevent the transfer of title. In this case the vendor alone determines...