Henney Buggy Company v. Cathels

• Decision Date: 15 December 1899
• Parties: HENNEY BUGGY COMPANY, Appellant, v. J. S. CATHELS and J. S. BANKER
• Court: Iowa Supreme Court

81 N.W. 164

110 Iowa 24

HENNEY BUGGY COMPANY, Appellant, v. J. S. CATHELS and J. S. BANKER

Supreme Court of Iowa, Des Moines

December 15, 1899

Appeal from Clarke District Court.--HON. H. M. TOWNER, Judge.

ACTION at law to recover possession of specific personal property. Trial to the court. Judgment for defendants, and plaintiff appeals.-- Affirmed.

AFFIRMED.

W. S Hedrick for appellant.

Jamison & Park, for appellees.

DEEMER J. GRANGER, J., not sitting.

OPINION

DEEMER, J.--

Plaintiff claims that it delivered some of the property in controversy to defendant Cathels, to be sold on commission with the agreement that the title should remain in it until settled for in cash; and that the remainder of the property was sent to Cathels for storage, and not for sale. Defendant Banker is the assignee of Cathels, and he and his assignor deny the plaintiff's claim, and further plead that Cathels purchased the property from the plaintiff.

The sole question in the case is, was the contract between plaintiff and Cathels a sale or a bailment? An agent of the plaintiff company took orders for buggies from defendant Cathels, and forwarded to his company orders signed by him or by Cathels, the material parts of which are as follows: "Henney Buggy Co.: Please ship at once, or as soon after as possible, the following described vehicles, terms 6 note or acceptance, 5 per cent. discount for cash in 30 days from date of invoice. This order is taken subject to the approval of the Henney Buggy Co., and, if approved, is not subject to countermand, nor will any other agreements, conditions, or stipulations verbal or otherwise, except those mentioned in this contract, be recognized. The title to the goods for which this order is given is to remain in the Henney Buggy Co. until the same, and all proceeds of the same, are settled for in cash. After goods are delivered to railroad company, and bill of lading receipted, the responsibility of the Henney Buggy Co. ceases. All goods subject to re-weighing by railroad company. All freight overcharges to be adjusted by consignee, with assistance of Henney Buggy Co., if desired. [Signed] J. S. Cathels. H." Whether or not any of the goods in controversy were sold under such orders is a matter in dispute. If they were, it is clear that such orders did not make defendant Cathels an agent for the sale of the goods so ordered. But there was evidence from which the court may have...