Moore v. Smith

• Decision Date: 27 June 1902
• Docket Number: 4,236
• Parties: MOORE v. SMITH ET AL
• Court: Indiana Appellate Court

64 N.E. 623

29 Ind.App. 503

MOORE v. SMITH ET AL

No. 4,236

Court of Appeals of Indiana

June 27, 1902

From Hamilton Circuit Court; J. F. Neal, Judge.

Suit by Ransom S. Moore against Arza Smith and others to enforce a chattel mortgage. From a judgment for defendants, plaintiff appeals.

Affirmed.

I. W Christian, W. S. Christian and E. E. Cloe, for appellant.

G Shirts and W. R. Fertig, for appellees.

OPINION

BLACK J.

The appellant brought his suit upon a chattel mortgage executed to him by one Rodocker on certain growing crops of corn on the 1st of June, 1899, it being alleged that the appellees Smith & Shelby purchased the corn,-- from whom is not stated,--and refused to pay the appellant therefor, and deny his rights and liens therein. The overruling of the appellant's demurrer to the fourth paragraph of the answer of the appellees is assigned as error. This answer showed that in September, 1899, the appellant went to the place of business of the appellees, who were engaged in the business of buying and shipping grain, and, as agent for the mortgagor, solicited the appellees to purchase the corn, and, to induce them to do so, represented and stated to them that the corn was clear of all liens and claims, except that he, the appellant, was entitled to the payment of $ 120 out of the proceeds of the corn by agreement between him and Rodocker; that the appellees relied upon these representations and statements of the appellant, and had no knowledge of the existence of the mortgage, and, so relying, were induced to purchase and did purchase the corn and then and there entered into a written contract for the purchase of the corn from the appellant, as such agent.

The contract was set out, signed by J. C. Rodocker, per R. S. Moore, and by Shelby & Smith, and purported to certify that "I have sold to Shelby & Smith," etc., five cornfields, stating their locations, "one-half of all the fields, or my interest therein, supposed to be 1,200 bushels, more or less, for which Shelby & Smith promise to pay," etc., delivered at their elevator at Sheridan, Indiana, by December 25, 1899, "for which we pay R. S. Moore $ 120, and the balance when the corn is delivered. The said Rodocker further agrees to deliver the said corn in good condition, sound and dry."

It was alleged that the appellees then and there paid appellant $ 120 on the purchase price of the corn, according to the terms of said writing; that Rodocker failed to deliver the corn and, at his special...