Herring Motor Co. v. Ætna Trust & Sav. Co.
| Decision Date | 18 November 1926 |
| Docket Number | No. 12397.,12397. |
| Citation | 87 Ind.App. 83,154 N.E. 29 |
| Court | Indiana Appellate Court |
| Parties | HERRING MOTOR CO. v. ÆTNA TRUST & SAVINGS CO. |
OPINION TEXT STARTS HERE
Appeal from Marion Circuit Court.
Claim by the Herring Motor Company against the Ætna Trust & Savings Company, as receiver of the Burpee-Johnson Company. From a judgment allowing the claim, but denying petition for priority, claimant appeals. Affirmed.Herbert E. Wilson and Jacob Morgan, both of Indianapolis, for appellant.
Ralph Bamberger and Isidore Feibleman, both of Indianapolis, for appellee.
Appellant by its amended claim and petition for priority, filed with appellee, sought to recover, as appellant says, certain shock absorbers shipped by it to the Burpee-Johnson Company, to be exchanged for certain other products manufactured or to be manufactured by said company, and, in the event that said shock absorbers could not be delivered, then to recover the value thereof.
The original claim was filed by appellant and allowed by appellee as a general claim; the amended claim and petition for priority was disallowed by appellee. There was an answer in denial, a trial by the court, and a finding and judgment for appellee, from which, after motion to modify and a motion for new trial had been overruled, this appeal is taken. The respective rulings mentioned are assigned as error.
The amended claim is in substance that prior to June 16, 1923, appellant purchased and received from the Burpee-Johnson Company a quantity of automobile accessories, worth to exceed $5,300; that thereafter, pursuant to an agreement between said company and appellant, a part of said purchase of the value of $5,226.75 were duly returned to and received by Burpee-Johnson Company from appellant; that thereafter other goods consisting principally of auto accessories and equipment (but no shock absorbers) theretofore purchased from said company by appellant were, pursuant to the aforesaid agreement, also returned to and received by said company, of the value of $97.64, making a total value of goods returned of $5,324.39; that pursuant to said agreement said company agreed to deliver to appellant an equivalent amount of other automobile accessories and equipment, and particularly steering wheels, oil gages, and foot accelerators, being automobile products manufactured, sold, and distributed by the said company; that thereafter, pursuant to said agreement of exchange, the said company did deliver and receive credit for merchandise in the total amount of $2,246.50; that after making such shipments to appellant there was still due it from said company in merchandise, steering wheels, oil gages, and foot accelerators of the value of $3,077.89, and that, prior to the appointment of a receiver herein, the said company informed appellant, and appellant was led to believe, that said company had in its possession and had and held for and on account of appellant the said property due and belonging to appellant under said exchange agreement subject to its orders; that said company failed to make shipment to appellant pursuant to said exchange agreement of said automobile accessories and appliances of the value of $3,077.89, due and belonging to it, and it says upon information and belief that the said company, or appellee receiver, sold or otherwise disposed of said property belonging to or owned by appellant of the value of $3,077.89, without the knowledge, authority, or consent of appellant, although demand for such property was duly made upon said company and upon appellee receiver; that by reason of the foregoing appellant is entitled to have its said claim declared and held to be a prior and preferred claim in the receivership, or that said receiver be ordered and directed by this court to deliver to appellant the said property which said company had agreed to deliver to it pursuant to said exchange agreement as aforesaid, and, upon failure of said receiver to so deliver said property of appellant to it, that the value of said property, $3,077.89, be held and declared to be a preferred claim against the property and assets of this trust.
It is difficult for the court to determine from the language of the amended claim whether appellant sought to recover for shock absorbers shipped by it to the Burpee-Johnson Company, or their value, or for merchandise, steering wheels, oil gages, and foot accelerators, promised in return for the shock absorbers, all of the value of $3,077.89; the quantity or value of each class of goods to be shipped on orders not having been determined. The original claim upon which the allowance of $3,077.89 as a general claim was made is not in the record, but it appears from a letter written by appellant that it was made up of credit memorandums issued by the Burpee Company to appellant. There is no controversy as to the amount of the allowance; the only questions being whether, under the facts which are substantially uncontroverted, the claim should have priority as a preferred claim. It appears by the evidence that appellant had purchased from the ...
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