Reeves & Co. v. Miller
| Decision Date | 30 June 1911 |
| Docket Number | No. 7,001.,7,001. |
| Court | Indiana Appellate Court |
| Parties | REEVES & CO. v. MILLER et al. |
OPINION TEXT STARTS HERE
On petition for rehearing. Judgment reversed.
For former opinion, see 91 N. E. 812.
Walter Olds, W. R. Baxter, and Elliott & Houston, for appellant. Hottel, Cauble & Hottel, for appellees.
The appellant entered into a written contract with appellees on the 27th day of August, 1906, whereby it sold to appellees a sawmill for the price of $2,625. The contract specifically described the property sold, and provided that the appellees should give six notes for the purchase price of $437.50 each. It was also stipulated in the contract that the title to the machinery sold should not pass to the appellees, but should remain in the seller until the purchase price was fully paid. It further provided that the seller should have a right to retake possession of the property in the event it was not paid for in accordance with the terms of the contract. The contract also contained a warranty of the machinery sold.
On the 1st day of September, 1906, appellees executed the notes provided for in the contract, and also executed a chattel mortgage on the machinery purchased, to secure the payment of these notes, which mortgage was duly recorded. The notes were not paid at maturity, and this suit was begun by appellant to collect the notes and foreclose the mortgage. The complaint was based on the notes and mortgage, and no question as to its sufficiency is raised.
The defendants filed an answer in four paragraphs, and as no objection is urged against the sufficiency of any of the paragraphs of answer, except the fourth, we omit further reference to the first three. A demurrer for want of facts sufficient to constitute a cause of defense was filed to the fourth paragraph of answer and overruled. This ruling of the court is the first cause relied on for reversal.
[1] The fourth paragraph of answer sets up a contract between appellees and one Holbrook, who was alleged to be the duly authorized agent of appellant, by the terms of which the machinery, described in the mortgage, was surrendered and turned over to said agent upon his agreement to release the mortgage and surrender the notes given for the purchase price of said machinery. Appellant insists that the answer is insufficient, for the reason that it does not aver that said Holbrook was acting for and in behalf of the appellant in the making of the contract alleged, and that the answer nowhere alleges that the appellee made such contract. The averments of the answer, so far as they relate to the question presented, are as follows: “That on the - day of -, 190-, and long before the bringing of this suit, J. H. Holbrook, the duly authorized agent of said plaintiff, came to the defendants, and, by the express agreement and contract entered into by and between said plaintiff's agent and the defendants herein, agreed and contracted to take the machinery set out in plaintiff's mortgage and his complaint herein, in full payment and satisfaction of the debt herein sued on, and would surrender the defendants' said notes and release the mortgage securing the same; that in compliance with said contract the said defendants surrendered to the plaintiff's said agent the ownership, possession, and control of said machinery, and that plaintiff's said agent took complete possession and control of the same and asserted ownership and advertised the same for sale, and that on the day advertised for said sale to be made neither the said plaintiff nor its said agent came and made sale thereof.”
It will be seen that the portion of this paragraph, above set out, describes Holbrook as the duly authorized agent of appellant, and alleges that the contract therein set out was made with him and the property turned over to him. These facts may be all true as averred, and still the appellant may not be bound by the contract. Holbrook may have been the duly authorized agent of Reeves & Co. at the time he made the contract, but he may not have been acting in their behalf in making it. The answer should have averred that the contract was made with the appellant, or that it was made with appellant by and through its agent, Holbrook, who was by them duly authorized in that behalf. Some other form of averment might be held sufficient, but whatever form is adopted should show that the agent had authority from the principal to make the contract, and that he acted in its behalf in making it. Enc. of Pl. & Prac. vol. 16, § 900; Codding v. Mansfield, 7 Gray (Mass.) 272;First National Bank v. Turner (Sup.) 24 N. Y. Supp. 793; May v. Kelley, 27 Ala. 497.
[2] Appellee contends that this defect in the answer is cured by the following averment contained therein: “Defendants further say that they, nor neither of them, have ever been in possession or control of the said property since the same was surrendered and turned over to the plaintiff's said agent in full payment of said notes and mortgage, but that the plaintiff has been in full and complete...
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