J. I. Case Threshing Mach. Co. v. Bargabos

Decision Date06 June 1919
Docket NumberNo. 21199.,21199.
PartiesJ. I. CASE THRESHING MACH. CO. v. BARGABOS.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Hennepin County; C. J. Rockwood, Judge.

Action by the J. I. Case Threshing Machine Company against J. G. Bargabos. Motion to strike out answer as sham and for judgment as for default of answer granted, and judgment for plaintiff, and defendant appeals. Reversed.

Syllabus by the Court

One who buys personal property then on the premises of a third party must take the property where it then is unless he stipulates for a different place or manner of delivery.

The buyer is not entitled to a bill of sale unless the contract provides for it.

Where on a cash sale the buyer gives his check for the pruchase price, the payment is conditional only, and if the check be not paid the seller may rescind the sale and retain or retake his goods.

The seller may rescind the sale by any overt act evincing an intention to do so, and if he rescinds the sale he cannot enforce payment of the check thereafter.

Where payment of the check was refused and thereafter the seller asserted ownership of the property and offered it for sale to a third party in whose possession it then was, but subsequently brought suit on the check, an answer alleging no consideration for the check should not be stricken out as sham, as the buyer's claim that the seller had rescinded the sale is not clearly shown to be unfounded.

An answer can be stricken out as sham only when it appears clearly and indisputably that there is no issue of fact for trial. C. Rosenmeier, of Little Falls, for appellant.

William Furst, of Minneapolis, for respondent.

TAYLOR, C.

Plaintiff sued to recover the amount of a check executed to it by defendant. Defendant admitted the execution of the check but alleged that there was no consideration for it. Plaintiff moved to strike out the answer as sham and for judgment as for default of an answer. The court granted the motion and rendered judgment for the amount of the check. Defendant appealed.

The facts are not much in dispute. J. G. Bargabos & Son were plaintiff's agents at Royalton, Minn., for the sale of tractors. One C. B. Pasch, living about seven miles from Royalton, gave an order to plaintiff for a tractor. The terms of sale seem to have been arranged and agreed upon by and between Pasch and a representative of plaintiff named Henderson. By the contract with Pasch plaintiff agreed to take an old steam engine then owned by Pasch as a part of the purchase price; but as a part of the transaction by which plaintiff agreed to take the engine, plaintiff made a contract with defendant whereby defendant's firm agreed to take the engine from plaintiff and pay plaintiff therefor the amount due plaintiff for the tractor over and above the amount paid in cash by Pasch. The sale to Pasch was completed and Pasch gave plaintiff a bill of sale of the engine. The amount due plaintiff from defendant's firm for the engine was agreed upon and defendant gave the check in controversy for this amount. After delivering the check, defendant demanded a bill of sale of the engine from plaintiff, which was refused. Thereupon defendant notified the bank not to pay the check and pursuant to this notice the bank refused to pay it. After plaintiff had presented the check to the bank and payment had been refused, plaintiff, claiming to be the owner of the engine, offered to sell it back to Pasch, on whose farm it still remained. Pasch refused to buy it, whereupon plaintiff directed him to take it to Royalton and deliver it to defendant, and brought this suit on the check. After the suit had been commenced, Pasch took the engine to Royalton and tendered it to defendant, who refused to receive it.

[1] The contract between plaintiff and defendant contained no provision for a bill of sale nor as to the place or manner of delivery of the engine, which was then at the Pasch farm as both parties knew. While plaintiff refused to give a bill of sale, no claim is made that plaintiff did anything to prevent defendant from taking possession of the engine. Defendant was not entitled to a bill of sale as he had not stipulated for it and it was not necessary to pass title to the property. 35 Cyc. 116. Not having stipulated for any different place or manner of delivery, it...

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15 cases
  • De Vries v. Sig Ellingson & Co.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 18, 1951
    ...Equitable Loan Ass'n, 186 Minn. 236, 243 N.W. 106; Schnirring v. Stubbe et al., 177 Minn. 441, 225 N.W. 389; J. I. Case Threshing Machine Co. v. Bargabos, 143 Minn. 8, 172 N.W. 882; National Bank of Commerce v. Chicago B. & N. R. Co., 44 Minn. 224, 46 N.W. 342, 9 L.R.A. It next becomes nece......
  • Guckeen Farmers Elevator Co. v. Cargill, Inc.
    • United States
    • Supreme Court of Minnesota (US)
    • August 14, 1964
    ...46 N.W. 306; National Bank of Commerce v. Chicago, B. & N.R. Co., 44 Minn. 224, 46 N.W. 342, 9 L.R.A. 263; J.I. Case Threshing Machine Co. v. Bargabos, 143 Minn. 8, 172 N.W. 882; Gustafson v. Equitable Loan Assn., 186 Minn. 236, 243 N.W. 106; Moberg v. Commercial Credit Corp., 230 Minn. 469......
  • Hanna State & Savings Bank v. Matson, 2018
    • United States
    • United States State Supreme Court of Wyoming
    • March 22, 1938
    ...... in this case. The trial court erred in its special findings. of fact and conclusions ...Rue, (Wash.) 159 P. 111; Lewis v. Lambros, (Mont.) 194 P. 152; Threshing Mach. Co. v. Bargabos, (Minn.) 172 N.W. 882; Van Winkle & Co. v. ......
  • Gustafson v. Equitable Loan Ass'n
    • United States
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    • May 27, 1932
    ......, the seller may immediately reclaim the property; the title in such case" not passing to the purchaser, the delivery being conditioned upon payment.\xC2"...W. 342, 560,9 L. R. A. 263, 20 Am. St. Rep. 566;J. I. Case Threshing Machine Co. v. Bargabos, 143 Minn. 8, 172 N. W. 882;Commercial Investment ......
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