Indiana Fibre Products Co. v. Cyclone Mfg. Co.

• Decision Date: 20 March 1924
• Docket Number: No. 11591.,11591.
• Citation: 81 Ind.App. 682,143 N.E. 169
• Parties: INDIANA FIBRE PRODUCTS CO. v. CYCLONE MFG. CO.
• Court: Indiana Appellate Court

81 Ind.App. 682

143 N.E. 169

INDIANA FIBRE PRODUCTS CO.

v.CYCLONE MFG. CO.

No. 11591.^*

Appellate Court of Indiana, Division No. 2.

March 20, 1924.

Appeal from Circuit Court, Miami County; Albert Ward, Judge.

Action by the Indiana Fibre Products Company against the Cyclone Manufacturing Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Albert H. Cole, of Peru, Ind., and Gus S. Condo, of Marion, for appellant.

Edward E. Eikenbary, of Wabash, Guy R. York, of Peru, Ind., and Plummer & Plummer, of Wabash, for appellee.

McMAHAN, J.

Complaint by appellant to recover for merchandise manufactured by appellant and sold to appellee. Appellee filed an answer in three paragraphs; the first being a general denial, the second payment, and the third estoppel. A demurrer to the third paragraph of answer being overruled, a reply of general denial closed the issues. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee. In connection with the general verdict, the jury answered certain interrogatories. At the proper time appellant orally moved the court to require the jury to more fully answer interrogatories Nos 12, 13 and 14, “for the reason that the answers are not fact answers.” This motion as well as a motion for a new trial being overruled, judgment was rendered for appellee.

The errors assigned are that the court erred (1) in overruling the demurrer to the third paragraph of answer; (2) in overruling appellant's separate and several motion to require the jury to more fully answereach of the interrogatories Nos. 12, 13, and 14; (3) in overruling appellant's motion for judgment on interrogatories and answers thereto; and (4) in overruling its motion for a new trial.

It appears from the pleadings, the answers of the jury to the interrogatories, and from the evidence, appellee paid E. C. Cann, who was appellant's superintendent, the amount due appellant by two checks; one check being for $1,334.56, payable to “E. C. Cann, superintendent Indiana Fibre Products Company,” and one for $13.72, payable to “E. C. Cann”; that Cann received the cash on these checks and converted the same to his own use. The result of this appeal depends upon the authority or apparent authority of E. C. Cann to make the collection from appellee. Each of the assignments of error relate to this question. We shall therefore consider them together.

Appellant owned and operated a factory at Marion, Ind., where it manufactured fiber and corrugated paper boxes or containers used in shipping merchandise. Appellee owned and operated a plant at Urbana, Ind., where it manufactured certain goods and products which were shipped by freight and otherwise to its customers. The president of appellee company owned and conducted another business under the name of Cyclone Seeder Company. The business of appellee was separate and distinct from that of the seeder company, but the business of both were conducted from one and the same office.

In February or March of 1918, E. C. Cann called at the office of appellee company, and in a conversation with Mr. Speicher, the president of appellee, who as stated was the sole proprietor of the seeder company, he informed Mr. Speicher that appellant was manufacturing fiber boxes and was interested in furnishing them to Mr. Speicher for his business. Mr. Speicher at this time informed Mr. Cann that he would be in the market later on for a carload of boxes. At the request of Mr. Cann Mr. Speicher promised to write to appellant later about the matter, which he did, and on April 9, 1918, appellant wrote a letter to the seeder company to the effect that the writer of the letter would call a few days later to take up the question of furnishing the boxes. This letter was signed, “Indiana Fibre Product Co., per E. C. Cann, Superintendent.” Following this letter Mr. Cann called at the office of appellant and the seeder company, and while there was asked whether the goods manufactured by appellee could be shipped in boxes manufactured by appellant. Mr. Cann said he thought they could, and took with him to appellant's factory three poultry coops made by appellee, each of which were to be packed in one of the fiber boxes manufactured by appellant, and to be shipped and returned to appellee in order to demonstrate that the boxes could be used for that purpose.

Appellant packed the three coops in boxes and shipped them as directed. A great many letters were thereafter exchanged between the parties, concerning the size of boxes to be made for appellee and the seeder company, as they had to be made specially to fit the articles manufactured by the parties. Both the seeder company and appellee gave orders for boxes during the summer of 1918, and paid for them by checks made payable to appellant and sent to appellant by mail. These checks were received by appellant, and were indorsed as follows: “For deposit only with the Marion National Bank, Marion, Ind., to the credit of Indiana Product Co. G. A. Bell, Pres.” All of the letters written by appellant to appellee and the seeder company were signed “Indiana Product Co., per E. C. Cann, Superintendent” or “Indiana Fibre Product Co. E. C. Cann.” with the exception of two, one of which, dated July, 1918, notified appellee that certain sample boxes were being shipped and quoting prices. This letter was signed “Indiana Fibre Products Co., Sales Manager, A. W. Barrows.” The other letter was dated October 6, 1918, that being Sunday. It was written in longhand, on the regular letter heads of appellant, and signed “E. C. Cann.” This letter, omitting the formal parts, reads as follows:

“Gentlemen: We are loading your seeder and coop boxes today, and will ship tomorrow, Monday. When you get the bill for these they will not all be billed to you but all your orders will be in these cars, but could not bill all on this bill for reasons that I will explain to you later. You can pay this bill in time to take your discount and then you can take care of the next bill when you receive it. Car C. P. 207132 contains all your seeder boxes and a few of your coop boxes and car L. R. & N. 5542 contains the balance of your coop boxes.

Yours Truly, E. C. Cann.”

On Sunday October 6, 1918, two carloads of fiber and corrugated paper boxes were loaded by appellant and on the next day were shipped to appellee. The seeder company had placed an order for boxes with appellant, and these boxes were placed in one of the cars so loaded and shipped to appellee with the boxes which had been ordered by appellee. On October 7, 1918, appellant mailed appellee two invoices covering part of the boxes that day shipped. One of these invoices was for $910.88, and the other was for $63.85. Appellee mailed a check to appellant in payment of these invoices in time to take advantage of the discount. On October 24, 1918, Mr. Cann called at the office of appellee and presented an invoice for the balance of the boxes shipped to appellee October 7th. This invoice called for $1,228. He also had with him and presented an invoice for the goods shipped to the seeder company, amounting to $144. When Mr.Cannpresented these invoices he said that his company had overstepped their allotment or had shipped appellee more goods than the War Department allowed them to ship to one customer; that, in order that their books would not show this shipment, the goods omitted from the invoice of October 7th had been billed to another one of appellant's customers who had settled with appellant for them, and that he (Mr. Cann) wanted to reimburse this customer on his return, and suggested that the check, be made to “E. C. Cann, Superintendent, Indiana Fibre Products Company.” When this request was made, appellee's secretary asked Mr. Speicher if it would be all right to do so, and, on being informed that it would, made out and delivered to Mr. Cann appellee's check for $1,344.56, payable Mr. Cann, superintendent of appellant, as requested. In making out this check, the secretary deducted 2 per cent., thinking appellee was entitled to 2 per cent. discount, but on having his attention called to the fact that appellee was entitled to a discount of but 1 per cent., gave Mr. Cann another check for $13.72. This check was made payable to “E. C. Cann.” A few days later Mr. Cann cashed these checks, converted the proceeds thereof to his own use, and severed his connection with appellant, and his whereabouts since that time is not known. Appellant had no record of the goods sold to appellee and shipped October 7, 1918, and included in the invoices so paid to Mr. Cann, and knew nothing about them having been shipped until some time in November, 1918, when appellee sent an order to appellant asking that it duplicate the order for boxes which had been covered by one of the invoices so paid to Mr. Cann. When this last order was received and no former order of that character could be found on appellant's books, appellant's president, Mr. Bell, called at appellee's place of business, and then for the first time learned of the shipment and the payment to Mr. Cann. Mr. Bell denied the authority of Mr. Cann to receive such payment, and demanded that appellee pay appellant for the goods included in the...