Phend v. Midwest Eng'g & Equip. Co.

• Decision Date: 07 October 1931
• Docket Number: No. 140930.,140930.
• Citation: 93 Ind.App. 165,177 N.E. 879
• Court: Indiana Appellate Court
• Parties: PHEND et al. v. MIDWEST ENGINEERING & EQUIPMENT CO.

93 Ind.App. 165

177 N.E. 879

PHEND et al.

v.MIDWEST ENGINEERING & EQUIPMENT CO.

No. 140930.

Appellate Court of Indiana, in Banc.

Oct. 7, 1931.

Appeal from Elkhart Circuit Court; Lloyd L. Burres, Judge.

Action by the Midwest Engineering & Equipment Company against Mose Phend and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Howard R. Inebnit, of Goshen, for appellants.

George R. Harper, of Goshen, for appellee.

NEAL, C. J.

The pleadings herein are a complaint in replevin and answer in general denial. Trial before court, request for a special finding which was granted, facts found specially, conclusions of law stated thereon, and the exceptions taken to each conclusion of law. The error assigned challenges separately and severally each of the conclusions of law.

A résumé of the special findings is as follows: On February 9, 1928, the Midwest Engineering & Equipment Company, plaintiff (appellee herein), a corporation of the state of Illinois, with principal office in the city of Chicago, and one Ray Messick of the city of Goshen, Ind., entered into a written contract for the conditional sale and installation of a refrigerating machine and equipment to be used as part of the fixtures of a meat market stand owned and operated by Messick. The written contract, by its several provisions, stipulated that until the full purchase price for the equipment furnished, to wit, $1,080, shall have been paid in full and in cash, that the ownership of, and all property rights in, the plant to be delivered to Messick shall remain in the seller; that, in case of failure or refusal on the part of the purchaser to make payments, or any of them, when due under the contract, or to make settlement by the execution and delivery of notes or other obligations as herein agreed, or to pay any note that may be given the seller as the same shall become due, then and in any of such events the whole of the unpaid portion of the purchase money, howsoever secured, and whenever payable, arising under the contract at the seller's option, shall become immediately due and payable; that, in the event of such default, the seller may enter upon the premises where the plant is located and take possession and remove the same; that the purchaser shall pay the purchase prices as follows: 10 per cent. in cash upon the signing of the contract, 25 per cent. in cash when the apparatus is installed and operating, and the balance in 18 monthly notes, with interest at 6 per centum; that the title to the apparatus described herein shall remain in the Midwest Engineering & Equipment Company until all obligations arising by virtue of the contract have been paid; that the agreement did not become operative until approved by an executive officer of the Midwest Engineering & Equipment Company at its office in Chicago, Ill. The agreement was signed by Messick on February 7, 1928, and signed and approved at the general office of appellee on February 9, 1928. The several cash payments were made as required by the terms of the contract, and Messick executed 18 promissory notes at Goshen, Ind., each note being in the sum of $39, dated March 2, 1928, payable to the order of appellee, one note falling due each month for a period of 18 months. Each note bore 6 per cent. interest per annum after maturity, and each of the notes was a judgment or cognovit note, and containing provisions to the effect as follows: That to secure the payment of the amount set out in the note the payee authorized irrevocably any attorney of any court of record to appear for him in such court in term time or vacation at any time after the due date and confess a judgment without process in favor of the legal holder of the note for such amount as may appear to be unpaid thereon, together with costs, and reasonable attorney fees, and to waive and release all errors which may intervene in such proceedings and consent to immediate execution upon such judgment hereby ratifying and confirming all that his attorney may do by virtue thereof. Thereafter, and upon the respective due dates, Messick paid to appellee the first seven notes of the series, and thereafter, and before the filing of the complaint, Messick closed and dismantled the meat market, sold and delivered the refrigerating machine and equipment to the appellants, who installed and are using the refrigerating machine in their dairy at Goshen, Ind. Neither Messick nor appellants have paid the judgment notes numbered from 8 to 18, inclusive, each in the sum of $39, and the same remain unpaid. Messick executed to Phend & Phend a bill of sale for the refrigerating machinery and equipment. Plaintiff (appellee herein) has not been paid the balance of the purchase price of the machinery and equipment. The property is now of the value of...