Snyder v. International Harvester Credit Corp., 469A62

• Decision Date: 13 August 1970
• Docket Number: No. 1,No. 469A62,469A62,1
• Citation: 261 N.E.2d 71,147 Ind.App. 364
• Parties: Wilden SNYDER, Appellant, v. INTERNATIONAL HARVESTER CREDIT CORPORATION, Appellee
• Court: Indiana Appellate Court

Page 71

261 N.E.2d 71

147 Ind.App. 364

Wilden SNYDER, Appellant, v. INTERNATIONAL HARVESTER CREDIT CORPORATION, Appellee.

No. 469A62.

Appellate Court of Indiana, Division No. 1.

Aug. 13, 1970.

Richard W. Mehl, Goshen, Donald E. Bowen, Bowen, Myers, Northam & Soards, Indianapolis, for appellant.

James A. Simpson, Simpson & McLaughlin, Goshen, for appellee.

COOPER, Judge.

This matter originated in the Elkhart Circuit Court wherein the plaintiff-appellee brought an action in replevin against the defendant-appellant. Thereafter, the cause was venued to the Noble Circuit Court from which this appeal comes. The complaint alleged that the defendant-appellant had, and unlawfully retained possession of, a certain truck, and prayed for the immediate possession of said truck together with damages for the unlawful detention thereof.

The defendant-appellant, in compliance with Rule 1--3 of the Rules of the Supreme Court of Indiana, filed an answer denying the material allegations of the plaintiff-appellee's complaint. Thereafter, the defendant-appellant filed what was denominated a cross-complaint against the plaintiff-appellee, alleging therein that at the time of the purchase of the truck he had executed certain papers and security agreements, that he was current in his payments, that the taking of his truck in replevin was wrongful, and prayed for damages in the sum of $11,000. The plaintiff-appellee filed its answer to the cross-complaint in compliance with the provisions of Supreme Court Rule 1--3.

The cause, thus being at issue on the complaint, the cross-complaint and the answers thereto, was submitted to, and tried by the court. The court found for the plaintiff-appellee and against the defendant-appellant on both the complaint and the cross-complaint, and entered judgment for the plaintiff-appellee, that the plaintiff-appellee was the owner of, and entitled to the possession of the truck and that the plaintiff-appellee was entitled to damages in the amount of $617.59 for the unlawful detention of the truck by the defendant-appellant.

The defendant-appellant's motion for a new trial alleged as cause therefor the following:

'1. The decision of the Court is not sustained by sufficient evidence.

'2. The decision of the Court is contrary to law.

'3. Error of law occurred at the trial as follows:

'The Court erred in overruling the objection of the defendant to the direct narrative testimony of the witness James A. Simpson, a witness called and taking the stand on behalf of defendant, which narrative testimony and answers and objections thereto and the ruling of the Court are in the words attached hereto to this motion for new trial as Exhibit A and hereof made a part.' (Tr., p. 41)'

The record reveals the following facts. In February of 1966, the appellant executed a retail order for a new International truck and he made a cash deposit of $5,000 with his order. Thereafter, upon delivery of the truck in June of 1966, appellant entered into a conditional sales contract with K & K Truck Sales, Inc., wherein he agreed to pay the balance due on the contract in monthly installments of $400.17 each. Said contract was thereafter assigned by K & K Truck Sales to International Harvester Credit Corporation, the appellee herein.

The record further shows that appellant made the required monthly payments from June of 1966 through March of 1967. In June of 1967 appellant was three payments in arrears on the contract. On or about June 14, 1967, Mr. Richard Bird, Assistant Credit Manager of appellee, called on the appellant at his home and made a demand for the back payments, which appellant said he would pay the following morning. On the next day, when Mr. Bird called for the money appellant had left a note saying that he was called out of town, but he would bring the money to Mr. Bird's office in Indianapolis. Mr. Bird then immediately conferred with appellee's attorney about instituting the within action. On June 23, 1967, this cause was filed. Pursuant to a writ of replevin issued by the Elkhart Circuit Court, the sheriff of Elkhart County took possession of the truck and returned it to K & K Truck Sales, Inc.

Thereafter, on July 20, 1967, appellant went to Mr. bird's office and paid $1610 in cahs 'to continue the contract.' Mr. Bird told appellant he was accepting this payment 'in escrow' subject to the appellant fulfilling three conditions by August 1, namely: Appellant was to make the August payment by August 1; he was to obtain insurance coverage on the truck with loss payable to appellee, and he was to pay the attorney's fees incurred in the replevin action.

The appellant made his August 1 payment on August 11; the insurance policy was obtained on August 14; the appellant did not pay appellee's attorney's fees. Thereafter in October the appellee accepted another payment on the contract together with interest for late payment, making a total of.$2,460 paid by the appellant on the contract after the July 20 agreement.

The appellant alleges that appellee has waived its rights to a judgment in the replevin action by reason of the agreements entered into between the parties on July 20, 1967, and the consideration passing to appellee by the payments made to, and accepted by, the appellee pursuant to said agreement after the action in replevin was instituted.

While appellant admits he was in default in his payments when the replevin action was filed, nonetheless he contends that by reason of the agreement entered into between himself and Mr. Bird, appellee's assistant credit manager, on July 20, 1967, the appellee waived its right to proceed to judgment in the replevin action. Appellant further contends that appellee is not entitled to judgment in the replevin action by reason of the fact that appellee did not, at any time, tender back to appellant monies held in 'escrow' which had been paid by appellant pursuant to the July 20 agreement.

Appellee contends, on the other hand, that appellant was in default on the contract at the time the replevin action was filed, and that the July 20, 1967, agreement has not affected this action because the appellant failed to comply with the three conditions of the agreement by August 1, 1967. Furthermore, appellee contends that the money paid by appellant pursuant to the July 20 agreement is being held in 'escrow' and that appellant can obtain this money upon request.'

The statute providing the remedy of replevin, Burns' Ind.Stat. § 3--2701 (1968 Cum.Supp.), reads as follows:

'When any personal goods are wrongfully taken, or unlawfully detained from the owner or person claiming the possession thereof, or when taken on execution or attachment, are claimed by any person other than the defendant, the owner or claimant may bring an action for the possession thereof. (Acts 1881 (Spec.Sess.), ch. 38, § 164, p. 240.)'

In order for a plaintiff to recover in an action for replevin, he must prove his title or right to possession, that the property is unlawfully detained, and that the defendant wrongfully holds possession thereof. Ring v. Ring (1961) 131 Ind.App. 623, 174 N.E.2d 58; Acceptance Corp. of Fla. v. Snider (1958) 128 Ind.App. 447, 149 N.E.2d 698; Warner v. Warner (1937) 104 Ind.App. 252, 10 N.E.2d 773.

The appellee herein based its right to possession of the truck upon the appellant's default on the conditional sales contract. As hereinbefore stated, appellant concedes that on the date this action was filed, June 23, 1967, he was in default. However, he asserts that the appellee, by its subsequent conduct in accepting payments from him on the contract, waived the default and its right to proceed to judgment in this action. With this contention we must agree. First, the record does not show that the money sent to Mr. Bird by appellant was placed in escrow. A valid escrow agreement requires the giving of a deposit to a stranger or third person to be kept by the depositary until the performance of a condition or the happening of an event, and then to be delivered over to the grantee, promisee, or obligee. Yost v. Miller (1921) 74 Ind.App. 673, 676, 129 N.E. 487; Moslander v. Beldon (1928) 88 Ind.App. 411, 164 N.E. 277; 12 I.L.E. Escrow, § 1, p. 320.

The payments made in July were received by Mr. Bird, appellee's assistant credit manger. The payments subsequently made in August and October were received by the appellee. Thus we must conclude that this money was accepted by appellee and was applied to the conditional sales contract. Nardine v. Kraft Cheese Company (1944) 114 Ind.App. 399, 52 N.E.2d 634; Karvalsky v. Becker (1940) 217 Ind. 524, 29 N.E.2d 560; Roberts v. Vonnegut (1914) 58 Ind.App. 142, 104 N.E. 321 (Transfer Denied).

Secondly, when appellee accepted appellant's August 1 payment on August 14, it waived any rights it might have had to enforce the conditions it sought to impose by its agreement of July 20.

Concerning the matter of waiver, this Court, in the case of Kenefick v. Schumaker (1917) 64 Ind.App. 552, 559, 560, 116 N.E. 319, stated:

'An approved definition of...