Manlove v. Maggart
| Decision Date | 08 May 1942 |
| Docket Number | 16818. |
| Citation | 41 N.E.2d 633,111 Ind.App. 398 |
| Parties | MANLOVE v. MAGGART et al. |
| Court | Indiana Appellate Court |
Wesley W. Ratliff, of Knightstown, for appellant.
Chester M. De Witt, of New Castle, for appellees.
This was an action in replevin brought by the appellant against the appellees to recover the possession of certain articles of household furnishings, which consisted of a dining room suite.
The complaint was in one paragraph, to which an answer in general denial was filed. The case was submitted to a jury for trial, and, at the close of all the evidence, the jury returned a verdict for the appellees. Judgment was rendered on the verdict. A motion for new trial was filed and overruled, and this appeal has been perfected. The only error assigned on appeal is the alleged error in overruling the appellant's motion for a new trial. Under this error, the appellant contends that the verdict of the jury is not sustained by sufficient evidence.
The appellant relies upon a conditional sales note to establish his title and right of possession in the property described. This conditional sales note was offered in evidence, and reads as follows:
One Hundred Fifty ....... no/100 Dollars Negotiable and payable at Omer S. Manlove's home, 2920 N. Cap. Ave Indianapolis, Ind.
With interest at the rate of 6 per cent, per annum, from date, and attorney's fees. For value received without any relief from Valuation or Appraisement Laws. The drawers and endorsers severally waive presentation for payment, protest or notice of protest and non-payment of this note. The express condition of the sale and purchase of one eleven piece mahogany dining room suite of eleven pieces, china closet, buffet, table, 6 chairs, one serving table and coffee table, for which this note is given, is such that the title and ownership of the above described property does not pass from said Omer S. Manlove, 2920 N. Cap. Ave., Indianapolis Ind. until this note with interest is paid in full. Omer S. Manlove has full power to declare this note due, and take possession of said property at any time he may deem this note insecure, even before the maturity of the same.
There was evidence from which the jury might have found that in September, 1935, the appellees were living in Indianapolis, Indiana, and the said James Burton Maggart was selling metal burial vaults for the appellant, who was engaged in this type of business.
There was further evidence sufficient to establish the following facts: On Labor Day, 1935, the appellant and the appellees went to Hartford City, Indiana, where the furniture in question was purchased from an administrator as a part of the assets of the estate of his decedent, one Anna Wallace. The appellees had seen this furniture at a prior date, and had told the appellant of its existence, and the appellant offered to loan the appellees the money if they desired to buy the furniture. On the occasion in question, the furniture was purchased at and for the agreed price of $150, and an additional desk was purchased for $10; and the appellant gave his personal check in the sum of $160 in payment thereof. The dining room suite was delivered to the appellees' home in Indianapolis, and the appellant kept and retained the desk. Nothing was said, at the time the furniture was purchased about the title remaining in the appellant, and no note was given as evidence of the loan of $150. On this occasion, the appellant again offered to loan appellees the money to make this purchase. Possession of the furniture was taken by the appellees and retained by them continuously until August 1, 1936, at which time the appellees were living four miles east of Greenfield, Indiana. On that date, the appellees...
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