Reeves & Co. v. Miller
| Decision Date | 30 June 1911 |
| Docket Number | 7,001 |
| Citation | 95 N.E. 677,48 Ind.App. 339 |
| Court | Indiana Appellate Court |
| Parties | REEVES & CO. v. MILLER ET AL |
From Washington Circuit Court; Thomas B. Buskirk, Judge.
Suit by Reeves & Co. against Noble Miller and another. From a judgment for defendants, plaintiff appeals.
Reversed.
W. R Baxter, Walter Olds and Elliott & Houston, for appellant.
M. B Hottel, W. W. Hottel and F. P. Cauble, for appellees.
On August 27, 1906, appellant entered into a written contract with appellees, whereby it sold to appellees a sawmill for $ 2,625. The contract specifically described the property sold, and provided that appellees should give six notes, of $ 437.50 each, for the purchase price. 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 should not be paid for in accordance with the terms of the contract. The contract also contained a warranty of the machinery sold.
On September 1, 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 to foreclose the mortgage. The complaint was based on the notes and mortgage, and no question as to their sufficiency is raised. The defendant 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.
The fourth paragraph of answer sets up a contract between appellees and J. H. Holbrook, who was alleged to be the duly authorized agent of appellant, by the terms of which, said machinery was turned over to said agent, on 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 appellant in making said contract, and that the answer nowhere alleges that appellant 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 defendants, and by the express agreement and contract entered into by and between said plaintiff's agent and the defendants herein, agreed to take the machinery described in plaintiff's mortgage, in full payment and satisfaction of the debt herein sued on, and to surrender to the defendants said notes, and to release the mortgage securing them; that, in compliance with said contract, said defendants surrendered to plaintiff's said agent the ownership, possession and control of said machinery, and plaintiff's said agent took complete possession and control thereof, asserted ownership, and advertised it for sale, and on the day advertised for said sale to be made, neither said plaintiff nor its said agent came and made sale thereof.
It will be seen that the portion of this paragraph before 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 all be true as averred, and still 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 its behalf in making it. The answer should have averred that the contract was made with appellant, or that it was made with appellant by and through its agent, Holbrook, who was by appellant 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. 16 Ency. Pl. and Pr. 900; Codding v. Inhabitants of Mansfield (1856), 7 Gray 272; First Nat. Bank v. Turner (1893), 24 N.Y.S. 793; May v. Kelly & Frazier (1855), 27 Ala. 497.
Appellees contend that this defect in the answer is cured by the following averment: "Defendants further say that neither collectively nor individually have they ever been in possession or control of said property since it was surrendered and turned over to plaintiff's said agent in full payment of said notes and mortgage, but that plaintiff has been in full and complete possession and control of said property ever since it was turned over and surrendered to it, as before set out."
The latter part of this quotation when considered in connection with the part first quoted, amounts to an averment that appellees turned the property over to Holbrook under the contract entered into with him, and that ever since that time said property has been in the possession of appellant, Reeves & Co. It cannot be doubted, that if Holbrook, assuming to act for Reeves & Co., entered into the contract with appellees, as set out in this paragraph of answer, and took possession...
To continue reading
Request your trial