Krag-Reynolds Company v. Oder

• Citation: 52 N.E. 458,21 Ind.App. 333
• Decision Date: 03 January 1899
• Docket Number: 2,621
• Parties: KRAG-REYNOLDS COMPANY v. ODER ET AL
• Court: Court of Appeals of Indiana

52 N.E. 458

21 Ind.App. 333

KRAG-REYNOLDS COMPANY v. ODER ET AL

No. 2,621

Court of Appeals of Indiana

January 3, 1899

From the Marion Superior Court.

Affirmed.

Hord & Perkins, for appellant.

W. N Pickerill and Howard Cale, for appellees.

OPINION

COMSTOCK, J.

The appellant was the plaintiff in the court below, and instituted this action against the appellee Ulysses G. Oder on the 5th day of May, 1896, to obtain possession, under a writ of replevin, of a small stock of groceries belonging to Oder, upon which appellant had a chattel mortgage. To appellant's complaint the appellee Oder filed answer in general denial, and a second paragraph of answer in which he alleged that he was a retail grocer of the city of Indianapolis, and a customer of the appellant, a corporation engaged in the wholesale grocery business in such city; that appellant's mortgage was given to secure the payment to appellant of a promissory note for the sum of $ 247.76, of which $ 196.76 was the amount of said appellee's indebtedness to appellant prior to the 1st day of December, 1895, and the remaining $ 50 was to cover goods which appellant was to deliver to such appellee; that appellant represented that it desired to aid such appellee by stocking him up, and Oder relied on such representations, and by reason thereof executed such note and mortgage; that appellant after procuring such note and mortgage upon appellee's stock of groceries, wholly failed and refused to deliver to Oder such $ 50 worth of goods, or any part thereof, and never intended to deliver them; and that such representations were made for the fraudulent purpose of procuring the execution of such note and mortgage, and without any intention of delivering such $ 50 worth of goods. The appellees John L. Avery and John J. Marshall upon application to the court were made parties defendant, and each filed a separate pleading. Appellee Avery alleged that the property described in appellant's complaint, and covered by the writ of replevin, was covered by a prior mortgage executed to secure him as an indorser for Oder upon a note for $ 300 in favor of Fletcher's Bank, that he is still indorser for the full amount of such note, that the same is unpaid, that Oder is insolvent, and that under the terms of such mortgage the action of appellant in taking possession of such property vested the title thereof in appellee Avery. Wherefore he prayed judgment against the appellant for the value of the property, etc. Appellee Marshall in his pleading alleged, in substance, that he held a lien on such property under a chattel mortgage executed to secure the payment of $ 250, that such lien was superior to that of appellant, and that, under one of the conditions of such mortgage, the action of appellant in taking possession of such property vested in appellee Marshall the title thereto. Wherefore he prayed the court for judgment against the appellant for the value of such goods etc. To these pleadings the appellant filed answer in general denial, and the cause was submitted to the court without the intervention of a jury. The court found for appellees and adjudged that the appellant, to whom the property in controversy was delivered under the writ of replevin, should return to appellee Oder within five days such property, or pay to Oder $ 100, the value of the property, and that the appellees Oder, Marshall and Avery recover of the appellant their costs. Appellant filed a motion for a new trial, which was overruled. The error assigned is the overruling of appellant's motion for a new trial. The specifications in the assignment of error discussed are that the decree of the court is not sustained by sufficient evidence, and is contrary to law.

Appellee Oder seeks to avoid the mortgage because appellant failed to deliver the $ 50 worth of goods, claiming that appellant's action in that behalf was...