Patterson v. Indiana Inv. & Sec. Co.

• Decision Date: 12 May 1921
• Docket Number: No. 10894.,10894.
• Citation: 75 Ind.App. 489,131 N.E. 19
• Court: Indiana Appellate Court
• Parties: PATTERSON et al. v. INDIANA INVESTMENT & SECURITIES CO.

75 Ind.App. 489

131 N.E. 19

PATTERSON et al.

v.INDIANA INVESTMENT & SECURITIES CO.

No. 10894.

Appellate Court of Indiana, Division No. 2.

May 12, 1921.

Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge.

Action by the Indiana Investment & Securities Company against Robert Patterson and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Albert M. Briston, of Indianapolis, for appellants.

John G. Rauch, of Indianapolis, for appellee.

NICHOLS, J.

Action in replevin. Finding and judgment for appellee. The only error assigned is the court's action in overruling appellant's motion for a new trial, which motion is based on the insufficiency of the evidence and the court's decision being contrary to law.

The evidence was by stipulation, which, so far as here involved, was substantially as follows:

Appellants were the owners of the motorcar in question. On January 2, 1920, Harry D. Shipp came to appellants and represented himself as a dealer in automobiles at Franklin, Ind., and appellants knew him to be such dealer, as he in fact was at the time. He thereupon negotiated for the purchase of said car from the appellants at the price of $1,516, to be paid in cash by the check of the purchaser. Pursuant to such negotiations, the said Shipp then gave to appellants his check, on the Franklin National Bank, of Franklin, Ind., for said $1,516, and upon delivering said check to appellants they delivered to the said Shipp the said car. Said Shipp on January 5, 1920, mortgaged said car, in due form, as being the owner thereof, unto appellee, and said mortgage was, within less than 10 days thereafter, duly recorded in Johnson county, Ind., of which county the said Shipp was at the time a resident, and in which county said car was then located. At said time, when said car was delivered to Shipp, he received from appellants a receipt, which recited that such car was sold to Shipp Auto Agency, Franklin, Ind., under which name said Shipp was then transacting business, and the amount of $1,516 was “paid ck. 1-2-20,” signed by the initials of the agent of appellants at Indianapolis. At the time said Shipp mortgaged said car to appellee, he exhibited to appellee the said bill for said car, containing said recitals and indorsement. At the time said Shipp gave said check, he did not have the sum of money called for by said check on deposit in the said Franklin National Bank, and, when said check was presented to said bank, payment thereof was refused for that reason, and said check has never been paid, and appellants have never received any money on said check, nor otherwise, in payment for said automobile.

At the time the check was issued, the said Shipp had some funds in the said Franklin National Bank, but did not have sufficient to pay said check. Shipp knew, at the time he gave said check, that he did not have sufficient funds in said bank with which to pay it; but he then believed that he would have funds paid to him by others to deposit in said bank, and hoped to have sufficient funds to meet and pay the check before it was presented to said bank. Shipp had never at any time before, bought any cars from, or had any transactions with appellants, but he had previously acquired an automobile, of the kind sold by appellants, through its agency at Indianapolis, from another party, and had previously mortgaged said...