The Aetna Powder Company v. Hildebrand

• Decision Date: 17 April 1894
• Docket Number: 17,195
• Citation: 37 N.E. 136,137 Ind. 462
• Parties: The AEtna Powder Company v. Hildebrand et al
• Court: Indiana Supreme Court

37 N.E. 136

137 Ind. 462

The AEtna Powder Company v. Hildebrand et al

No. 17,195

Supreme Court of Indiana

April 17, 1894

From the Marion Superior Court.

The judgment is affirmed.

F. H Blackledge and W. W. Thornton, for appellant.

S. M Chambers, S. O. Pickens, C. W. Moores, U. J. Hammond and E St. G. Rogers, for appellees.

OPINION

McCabe, J.

Jacob S. Hildebrand and James L. Fugate had been partners in the mercantile hardware business in Indianapolis for many years. Becoming embarrassed and insolvent, one of them, Jacob S., filed a petition in the superior court against the other, James L., alleging their insolvency and asking a dissolution of the partnership and the appointment of a receiver to take charge of, and wind up, the affairs of said partnership. Whereupon such proceedings were had at special term as that Alonzo P. Hendrickson was duly appointed receiver for, and who took possession of, the assets of said firm.

The appellant, the AEtna Powder Company, appeared and filed an intervening petition asking to make Edwin St. George Rogers and Philip M. Hildebrand parties defendant.

The substance of the intervening petition is that the appellant had, on the 11th day of February, 1886, entered into a written contract with the firm of Hildebrand & Fugate, a copy of which, as an exhibit, is filed with the petition, and by which, it is claimed, the appellant, constituted said firm the agent and trustee of appellant to sell, as such agent, powders manufactured by appellant.

It is further alleged that said contract continued in force until the 25th day of September, 1893, when it was terminated by appellant; that appellant, during that time, furnished to said firm many thousands of pounds of its high explosive powders to sell in accordance with the terms of said contract; that said firm, pursuant to said contract, on the first day of May, 1893, in writing, reported to appellant that for the sixty days immediately preceding that date there was due from them to appellant, on sales made of said powder so furnished after deducting their commissions and other lawful charges, the sum of $ 677.27. And on July 1, 1893, a like report was made by said firm showing that for the sixty days immediately preceding that date, there was due from them to appellant on sales made of said powders so furnished, after deducting their commissions and other lawful charges, the sum of $ 515.07. And that on the 1st day of September, 1893, a like report was made by said firm, that for the sixty days immediately preceding that date there was due from said firm to appellant, on sales of said powders so furnished, after deducting their commissions and other lawful charges, the sum of $ 313.55; that from the last report to the termination of the contract the amount reported as due appellant on account of sales in that time, after deducting commissions and other charges, amounted to the sum of $ 26.40, amounting in all to $ 1,694.54, all of which is due appellant and remains wholly unpaid; that no note was at any time executed by said firm to appellant for all or any part of said sums so reported due appellant on powder sold by said firm, as aforesaid; that of the moneys due on said sales of powders during the sixty days immediately preceding said May 1, 1893, and the sixty days immediately preceding September 18, 1893, said firm collected, before the appointment of the receiver, large sums, the amounts of which appellant is unable to state, which amounts so collected they placed and deposited with moneys of said firm, either in or out of bank or both, and never remitted or paid the same to appellant; and that parts of such amounts thus collected, but how much appellant is unable to state, said firm, without the consent of appellant, used for the purpose of purchasing goods, wares and merchandise for their said business, and the goods thus purchased became a part thereof, and are now a part of the assets of said firm, and the moneys derived from the sale by said firm of the goods, wares, and merchandise thus purchased were either used by said firm in their said business or were on hand at the time said receiver was appointed, but whether all of said fund was used or kept, or whether a part was used and a part kept, or whether said receiver has received parts of the amounts of said sales since his appointment, appellant is unable to state; that the receiver had taken possession of all the accounts and contracts of sale of said powders, that had been made during the sixty days previous to said May 1, 1893, and from that date to said September 18, 1893, the date of the last report, which had been uncollected and unsatisfied, and has, as such receiver, collected and received a part or the whole of the amount due thereon, and now has the same in his possession, but how much he has thus collected appellant is unable to state; that before the appointment of said receiver said firm of Hildebrand & Fugate had executed a mortgage upon all of the assets of said firm to Philip M. Hildebrand and Edwin St. George Rogers, including the property that had been purchased by said firm, with the moneys collected by said firm on said contracts of sale of said powders; that said mortgage was executed to said Philip M. Hildebrand and Rogers to secure debts and obligations of said firm to said mortgagees due before the execution of said mortgage; and that the same was not given for an extension of time of payment of said indebtedness nor for any new obligation or indebtedness.

Prayer that appellant's claim be declared a preferred one to all other creditors, and to the mortgagees' claim.

The contract on which the petition is founded reads as follows:

"It is this day agreed between the AEtna Powder Company of Chicago, Ill., and Jacob S. Hildebrand and James S. Fugate, co-partners, composing the firm of Hildebrand & Fugate, at Indianapolis, Indiana, jointly and severally as follows:

"The said AEtna Powder Company, for their part, agree to consign to the said Hildebrand & Fugate, to sell as agents, such powders, of the kinds manufactured by the AEtna Powder Company, as shall be needed, and pay the freight on the same to Indianapolis; that said AEtna Powder Company will establish a scale of prices below which the goods so consigned shall not be sold, and that they hereby reserve the right to change the same at any time, and will, and hereby do, authorize the said Hildebrand & Fugate to sell the goods so consigned at the prices so established.

"The said AEtna Powder Company further agree that they will allow the said Hildebrand & Fugate, as a commission for selling the goods so consigned, and for guaranteeing all sales made by them, the sum of ten per cent. of the gross sales of all powder known and branded as AEtna High Explosive, with an additional allowance of thirty cents per case for cartage. The said Hildebrand & Fugate, for their part, agree to act as agents for the said AEtna Powder Company for the sale of the powder so consigned to them; to use due diligence in selling; to guarantee all sales made, and to become the agents for the sale of no other high explosive powder while they retain the agency as above. The said Hildebrand & Fugate also agree to adhere strictly to such scale of prices as are furnished by the AEtna Powder Company.

"The said Hildebrand & Fugate furthermore agree to make no charges for storing, selling, or delivery, other than the commission above specified, and to be responsible for the good and safe keeping of the powder after the delivery to them, unavoidable accidents (occurring from no neglect or carelessness on their part) excepted.

"The said Hildebrand & Fugate furthermore agree to make a true and correct report to said AEtna Powder Company of all sales, at the end of each sixty days, of the amount of sales for that time, reporting the full selling price of all sold, and to pay for the same, less their commissions as above, with their sixty day note.

"It is further agreed that either party being desirous of terminating this contract must give a reasonable notice to the other, and make satisfactory arrangements for the disposition of property and full settlements of mutual accounts.

"In witness of the above we have hereunto set our hands at -----, this the 11th day of February, 1886.

"[Sign in duplicate.] Hildebrand & Fugate."

A demurrer to the petition, for want of facts sufficient, was sustained by the special term, and the appellant standing by the demurrer, and refusing to plead further, the appellees had judgment upon the demurrer. On appeal to the general term the judgment was affirmed, holding that the demurrer was rightly sustained to the petition. That ruling of the general term is assigned here for error.

The appellant contends that the contract...