Jessup v. Fairbanks, Morse & Co.

• Decision Date: 25 October 1906
• Docket Number: No. 5,788.,5,788.
• Citation: 78 N.E. 1050,38 Ind.App. 673
• Court: Indiana Appellate Court
• Parties: JESSUP et al. v. FAIRBANKS, MORSE & CO.

38 Ind.App. 673

78 N.E. 1050

JESSUP et al.

v.FAIRBANKS, MORSE & CO.

No. 5,788.

Appellate Court of Indiana, Division No. 2.

Oct. 25, 1906.

Appeal from Circuit Court, Parke County; Gould G. Rheuby, Judge.

Action by Fairbanks, Morse & Co. against Lincoln R. Jessup and others. From a judgment in favor of plaintiff, defendants appeal Affirmed.

Doan & Arbison and Hunt & Hancock, for appellants. Howard Maxwell and Harvey, Pickens, Cox & Kahn, for appellee.

COMSTOCK, P. J.

Appellee, a corporation, brought this action against appellants to recover the purchase price of a certain gasoline engine, which had been sold to appellants upon condition that the title and right of possession should remain in the vendor until payment had been made in full as specified in the written contract. Before all the payments, provided for in the contract, had been made, and before all payments had become due, the engine was wrecked by a fire which destroyed the building in which it was located. The issues were formed by the complaint and an affirmative answer by the appellants, in which they set up the destruction of the engine by fire without fault on their part as causing a failure of consideration for the contract in suit. A copy of the contract was filed with the complaint and with the answer. Appellee filed a demurrer for want of facts to this answer, which demurrer was sustained, and, defendants refusing to plead further, judgment was rendered against them for the sum of $499.87. From this judgment, appellants appeal.

The sustaining of said demurrer is charged as error for which a reversal is asked. We deem it necessary to set out only the following portions of Exhibit A, a copy of the contract filed with the complaint and answer. “Fairbanks, Morse & Company, Manufacturers of Gas and Gasoline Engines. Indianapolis, Ind., Oct. 3, 1903. Messrs. Jessup & Wheeler, Oakdale, Indiana-Fairbanks, Morse & Company hereby propose to furnish and deliver f. o. b. Beloit, Wis., one 25 H. P. Fairbanks-Morse gasoline engine, according to the following specifications: [Then follows the specifications, the guaranty, a list of supplies to be furnished with the engine.] The foundation plan will be furnished by us, foundation to be prepared and furnished by you. A competent man to superintend the erection of the engine will be furnished by us. You will supply all necessary labor and do all teaming. We propose to furnish the above engine and material for the sum of $800.00 payable at the office of Fairbanks, Morse & Company, Indianapolis, Indiana, of which amount $200.00 is to be paid upon shipment, balance as follows: “$200.00 when erected and $400.00 six months after shipment at 7 per cent. per annum after due, also all expenses incurred in the collection thereof secured by contract. It is agreed that the title and right of possession of said engine shall remain in Fairbanks, Morse & Company until payment has been made in full, as above provided, and in the event notes are taken representing the deferred payments, the title shall not pass until said notes are fully paid and satisfied. Upon default of any payment when due, said Fairbanks, Morse & Company or their agent, may enter the premises without process of law, take immediate possession of, and remove, said property and any payments theretofore received, they shall be entitled to retain to cover expenses of taking possession of the above-described property and to cover usage, and wear and tear upon the same. This proposal is binding when signed by the purchaser and approved by the Manager of Fairbanks, Morse & Company at Indianapolis, it being expressly understood and agreed that this is the only contract existing between the parties here mentioned and that there are no verbal agreements to the contrary. [Signed] Fairbanks, Morse & Company.” Proposal accepted by Jessup & Wheeler.

The foregoing is a sale on condition. It is not a contract to make a future sale. It required nothing to be done by the vendor to pass title. It gives the vendor the right to retake the property which is a disaffirmance of the sale, or second, he may treat the sale as absolute, and bring an action for the price. Turk v. Carnahan, 25 Ind. App. 125, 57 N. E. 729, 81 Am. St. Rep. 85;Green v. Sinker-Davis Co., 135 Ind. 438, 35 N. E. 262;Smith v. Barber, 153 Ind. 322, 53 N. E. 1014. The contract being a present contract of sale, its stipulation that the title should remain in the vendor until the full payment of the purchase price, did not relieve the vendees from the contract...