Mellencamp v. Reeves Auto Co.

• Decision Date: 09 June 1934
• Docket Number: 14,739
• Citation: 190 N.E. 618,100 Ind.App. 26
• Parties: MELLENCAMP v. REEVES AUTO COMPANY
• Court: Indiana Appellate Court

190 N.E. 618

100 Ind.App. 26

MELLENCAMP v. REEVES AUTO COMPANY

No. 14,739

Court of Appeals of Indiana

June 9, 1934

Rehearing denied October 1, 1934.

Transfer denied February 18, 1935.

1. SALES---Conditional Sales---Description of Chattels---Variance.---Conditional seller held to have retained title to a tractor and farm implements specifically described in the contract although the clauses providing for retention of title referred to the property as "said automobile." p. 32.

2. CONTRACTS---Construction---Intention of Parties.---In construing contracts the intention of the parties must be ascertained and given effect if it can be done consistently with legal principles. p. 32.

3. CONTRACTS---Construction---Intention of Parties.---The form of a contract does not necessarily control its interpretation, but the object of the parties in making the agreement should be ascertained. p. 32.

4. SALES---Conditional Sales---Effect of Provision for Sale on Default and Payment of Balance.---A conditional sales contract did not become a mere chattel mortgage by provision in renewal notes for sale of the property on default and payment of balance and expense of collection. p. 33.

5. TRIAL---Finding of Facts and Conclusions of Law---Ownership.---The statement of ownership, title, or interest by the court as resting in any individual is a finding of an ultimate fact and not a conclusion of law. p 34.

From Bartholomew Circuit Court; Charles S. Baker, Judge.

Action by Reeves Auto Company against Louis Mellencamp for damages for conversion. From a judgment for plaintiff, defendant appealed.

Affirmed.

George W. Long, for appellant.

Rynerson & Shinn, for appellee.

OPINION

KIME, J.

This is an appeal from a judgment in appellee's favor in a suit brought by appellee against appellant for damages for the conversion of a tractor, governor, No. 12 Oliver plow, Bull-Dog jointer and a Moline two-row cultivator.

Upon the issues being joined by answer in general denial there was a trial by the court with a special finding of facts and conclusions of law thereon. Judgment was rendered on the conclusions of law. Appellant then filed a motion for new trial on the grounds, (1) that the decision of the court is not sustained by sufficient evidence, and (2) that the decision of the court is contrary to law. The motion for a new trial was overruled, and exceptions taken to each conclusion of law, all of which is assigned as error here.

Appellee's complaint is in two paragraphs and alleges that it is a corporation duly organized and existing by virtue of the laws of the state of Indiana, and that it is and was on the 15th day of March, 1928, duly authorized to buy and sell motor vehicles, tractors, farming implements, etc. It is also further alleged that on the 15th day of March, 1928, appellee entered into a conditional sales contract with one Sam Calvin, and there is no finding that he was a dealer, whereby it sold to said Calvin the above described tractor, etc., on condition that the title to said property should remain with appellee until all payments have been paid in full. The title to said property did remain with appellee and the said Calvin failed to make the payments as required by said contract and failed and refused to carry out the terms of the agreement.

It is also alleged that the defendant, Louis Mellencamp, was formerly engaged in business with one Henry Westermeier under the firm name and style of Farmers Supply Company, and that after the execution of the conditional sales contract Mellencamp and Westermeier, doing business as Farmers Supply Company, negotiated with Calvin and purported to purchase the property heretofore described from Calvin; that the date of such transaction was unknown to appellee and that at the time of the negotiation by Mellencamp and Calvin the property heretofore described was delivered to Mellencamp and Westermeier, doing business as Farmers Supply Company, and that they sold and converted said property to their own use.

Appellee further averred that it did not have knowledge of such conversion until the 10th day of April, 1931, and that thereafter, on the 15th day of December, 1931, it made demand upon appellant for delivery of said property, which appellant refused to deliver and still refuses to deliver.

There was introduced into evidence appellee's exhibit No. 1 which is hereby set forth:

"Indiana Sales Contract

Order

Tractor

$ 561.28

Gov.

22.50

12" Oliver Plow

88.50

Bull Dog Jointer

26.50

Moline Cultivator 2 row

167.00

Total

$ 865.78

cr. by horses

140.00

$ 725.78

"To Reeves Auto Co., hereinafter called Seller, Columbus, Indiana.

"In consideration of the sum of one hundred forty dollars (140.00) paid you by the undersigned in cash herewith by the undersigned, and the further amount of Seven hundred twenty-five and 78/100 dollars ($ 725.78) to be paid as hereinafter specified, please deliver to the undersigned one Fordson automobile Tractor, gov., plow with jointer and cultivator; Model Letter or No , Motor No. 740098; factor Car No ; Body Style ; Capacity No. of Cylinders

"The undersigned agrees to make the deferred payments in accordance with the terms of certain promissory notes, of the date of this order, signed by the undersigned and made payable to you or your order, the face and date of payment of which will be as follows:

$ 292.89 due Dec. 15, 1928

$ due 192.

$ 432.89 due Sept. 1, 1929

$ due 192.

respectively, all of which bear interest at the rate of 7% per annum after date until paid.

"To induce the seller to deliver said car the undersigned, hereinafter called the purchaser, agrees to the following conditions, viz:

"If any default be made in the payment of any of said notes or the interest thereon, then all of said notes shall at the option of the seller, without notice of said option to any one, become at once due and payable, anything in said notes to the contrary notwithstanding. The title to the above described automobile shall not pass to the purchaser until all of said notes and the interest due thereon are paid in full and until such payments shall have been made, said automobile shall remain the property of the seller. Said automobile shall not be sold by the purchaser or taken out of the State in which the purchaser now resides, without the written consent of the seller until all payments shall have been made and title vested in the purchaser.

"It is further agreed that the title to the above described automobile, tractor or machine, shall not pass and vest in the purchaser until any and all bills and accounts due the seller for any and all repairs, improvements, accessories, supplies, gasoline and oils furnished the purchaser by the seller hereafter, and prior to the actual payment of the last deferred payment stipulated herein, for the improvement, repair or operation of said automobile, tractor or machine, shall have been paid in full.

"The purchaser shall keep all the taxes and legal assessments against said automobile paid and keep said automobile insured against loss by fire, theft and . . . for the insurable value thereof in such companies as the holder of said notes may direct, and make the loss if any, payable to and deposit the policies with the holder of said notes as security for their payment. He shall not use or permit said automobile to be used for in connection with the transportation, sale, barter, or gift of intoxicating liquor or other substance in violation of law, State, Federal or Municipal.

"The promissory notes to be given by the purchaser as herein provided shall not be considered as payment of the purchase price of said automobile or as payment of such indebtedness. Upon failure of the purchaser to make any such payments provided for herein at the time same is due and payable, the seller or any person named by the seller may at the seller's option take possession of and remove said automobile without legal process, and in such case it is agreed that all payments heretofore made hereunder shall be considered as having been made for use of said automobile while in the possession of the purchaser, and such payments shall be retained as rental.

"It is expressly agreed that this order shall not be countermanded, that it covers all agreements between the parties relative to this transaction, and that all the terms and conditions of this order shall apply to and be binding upon the purchaser and the personal representatives, successors and assigns of the purchaser, and shall inure to the benefit of said seller, and the personal representatives, successors and assigns of said seller. The execution of said notes shall be conclusive proof to the delivery of said automobile to said purchaser.

Dated 15 day of March, 1928. SAM CALVIN (Seal) Witness E. C. Brougher."

The court, at the conclusion of the evidence, found the facts to be as follows:

"1....