Heyns v. Meyer

• Decision Date: 24 May 1910
• Docket Number: No. 7,020.,7,020.
• Citation: 91 N.E. 973,46 Ind.App. 45
• Parties: HEYNS et al. v. MEYER et al.
• Court: Indiana Appellate Court

46 Ind.App. 45

91 N.E. 973

HEYNS et al.

v.MEYER et al.

No. 7,020.

Appellate Court of Indiana, Division No. 2.

May 24. 1910.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by William Heyns and others against Martin Meyer and others. From a judgment for defendants, plaintiffs appeal. Reversed, and new trial ordered.

Lucius C. Embree and Morton C. Embree, for appellants. Stilwell & Kister, D. W. Duncan, and J. W. Brady, for appellees.

RABB, J.

One Friday made the conditional sale of a stone crusher to the appellee, evidenced by a written contract signed by the parties. The 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 the said machine should remain in the seller until the 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 of the same. This contract and the said notes were assigned by the said Friday to one Ziliak, who in turn assigned them to appellant, and, all of said notes being due and unpaid, this action was brought by appellant to recover possession of the machine; appellant claiming to own the same by virtue of the transaction. The evidence shows a written contract entered into between Friday and appellee Meyer, by the terms of which Friday sold to Meyer on conditions named therein a stone crusher. This writing set out in detail the terms of the contract and defined the rights of each 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 note payable to Friday at certain dates in the future, for the residence, 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 appellee was a subcontractor under appellant, furnishing appellant with the crushed stone in making the road; that the machine in question was used by them in crushing the stone; that Friday's notes came due, and appellee was unable to meet and pay them; that Friday was pressing him for the money; that, under these conditions, appellee informed a Mr. 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 appellant 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 an assignment of the contract for the sale of the crusher, and the notes to himself, the notes being assigned to him without recourse, he paying Friday...