Heyns v. Meyer
| Decision Date | 24 May 1910 |
| Docket Number | 7,020 |
| Citation | 91 N.E. 973,46 Ind.App. 45 |
| Parties | HEYNS ET AL. v. MEYER |
| Court | Indiana Appellate Court |
From Gibson Circuit Court; O. M. Welborn, Judge.
Action by William Heyns and others against Martin Meyer. From a judgment for defendant, plaintiffs appeal.
Reversed.
Lucius C. Embree and Morton C. Embree, for appellants.
D. W Duncan, J. W. Brady, W. E. Stilwell and Henry Kister, for appellee.
One Friday made a conditional sale to appellee of a stone crusher, evidenced by a written contract signed by the parties. Said appellee at the same time executed to the seller, as a part of the purchase price of the machine, three promissory notes. The contract provided that the title to said machine should remain in the seller until said notes were paid, and that the purchaser was to have possession of the machine; but on a failure to pay said notes, or either of them, at maturity, the seller should have the right to take possession thereof.
This contract and said notes were assigned by said Friday to one Ziliak, who in turn assigned them to appellants, and all of said notes being due and unpaid, this action was brought by appellants to recover possession of the machine, appellants claiming to own it by virtue of the transaction.
The evidence shows a written contract entered into between Friday and appellee, by the terms of which Friday sold to Meyer, on conditions named, a stone crusher. This writing set out in detail the terms of the contract, and defined the rights of the parties thereto in the machine, which was the subject-matter thereof. The terms of this contract provided that the purchaser should pay a certain part of the purchase price in cash, and should execute his notes for the residue payable to Friday, at certain dates in the future, and that on failure to pay the notes as they matured Friday should have the right to take possession of the machine, and that the legal title to the machine should not pass to the purchaser until the purchase price was fully paid.
It also appears that appellee executed the notes to Friday as provided in the contract, and while the contract furnished the consideration for the notes, the notes in no manner referred to the contract or to the title of the machine.
It also appears that appellants were engaged in the construction and improvement of certain public highways, in which work crushed stone was used, and that said appellee was a subcontractor under appellants, furnishing appellants with the crushed stone in making the road, and that the machine in question was used by them in crushing the stone; that Friday's notes came due, and said appellee was unable to pay them that Friday was pressing him for the money; that, under these conditions, appellee informed Ziliak of his embarrassment, and told him that unless Friday was paid, he (Friday) would take the machine from him; that Ziliak informed appellants of the condition of affairs, and, by agreement between Ziliak and appellants, Ziliak went to see Friday in reference to the matter; that Friday told Ziliak that the crusher was now his, and he could take it at any time, and that Ziliak bought Friday's claim to the property, taking to himself an assignment of the contract for the sale of the crusher and the notes, the notes being assigned to him without recourse, he paying Friday therefor the remainder due on said appellee's contract, the notes and contract being assigned by Ziliak to appellants; that the purchase was made from Friday by Ziliak at the request of appellants, and for the purpose of preventing Friday from interfering with said appellee's carrying out his contract with appellants to furnish the crushed stone for the construction of...
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