Warren Co. v. Exodus

• Decision Date: 15 May 1944
• Docket Number: 17206.
• Citation: 54 N.E.2d 775,114 Ind.App. 651
• Parties: WARREN CO., Inc., v. EXODUS.
• Court: Indiana Appellate Court

54 N.E.2d 775

114 Ind.App. 651

WARREN CO., Inc., v. EXODUS.

No. 17206.

Appellate Court of Indiana, in Banc.

May 15, 1944

Morris D. Feldman, of South Bend, for appellant.

Leo J. Lamberson and Theodore G. Wood, both of South Bend, for appellee.

CRUMPACKER Chief Judge.

The appellant, a corporation organized and existing under and by virtue of the laws of the State of Georgia, brought this suit in the St. Joseph Superior Court to replevy an electric refrigerator, of which it claimed to be the owner and entitled to immediate possession. The appellee filed a cross-complaint to recover damages for an alleged breach of warranty as to the condition and performance of said refrigerator which he had purchased from the appellant on a conditional sale contract. Issues were joined on both pleadings and submitted to the court for trial without the intervention of a jury. The court found against the appellant on its complaint and for the appellee on his cross-complaint in the sum of $420. Over the appellant's motion for a new trial judgment on the above findings was entered and the appellant appealed, assigning as error the overruling of its motion for a new trial wherein it is charged that the decision of the court is not sustained by sufficient evidence and is contrary to law.

As to that portion of the judgment wherein it is ordered 'that the plaintiff have and take nothing of and from the defendant by reason of the allegations set forth in the plaintiff's complaint,' the assignment that 'the decision of the court is not sustained by sufficient evidence' presents no question. In that respect the judgment is purely negative and it has been repeatedly held in this State that such a judgment may not be attacked on the grounds that there is a lack of evidence to support the decision upon which it rests. McKee v. Mutual Life Ins. Co. of New York, 1943 Ind.Supp., 51 N.E.2d 474; Wilson, Adm'x v Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; Scoopmire v. Taflinger, 1944, Ind.App., 52 N.E.2d 728. However, a purely negative judgment may be contrary to law when, in its general scope and meaning, it is contrary to the principles of law applicable to the case and not merely defective in some particular. Anderson v. Donnell, 1879, 66 Ind. 150, 160; Candy, Adm'r v. Hanmore, 1881, 76 Ind. 125, 128; Eward v Eward, 1920, 72 Ind.App. 638, 125 N.E. 468. Neither the briefs of counsel nor the record itself clearly indicate upon what theory of law the court found against the appellant on its complaint. The action is in replevin, the appellant claiming to be the owner and entitled to the immediate possession of a certain electric refrigerator which the appellee wrongfully refuses to surrender. It is not only undisputed but affirmatively admitted by the appellee that he purchased the chattel in controversy from the appellant on a written conditional sale contract whereby a portion of the purchase price was paid upon the execution of said contract and the balance was to be paid in equal monthly installments. Title and ownership of said refrigerator was to remain in the appellant until the ful purchase price had been paid and, in default of any payment, the said chattel was to be returned to the appellant on demand and all payments theretofore made retained by said appellant as liquidated damages. With an unpaid balance of $376.74 the appellee refused to make further payments. Demand for the possession of the refrigerator was made by the appellant, possession refused by the appellee, and this suit instituted. A writ of replevin was issued to the Sheriff of St. Joseph County who removed the refrigerator from the appellee's premises and, we conclude from an examination of the record, the appellee failed to post bond for its return pendente lite, as provided by statute, and it was thereupon delivered to the appellant upon its filing the required bond. As the trial progressed the only controversy that developed between the parties was over the issues joined on the appellee's cross-complaint which sought damages for an alleged breach of warranty as to the condition and performance of the refrigerator, upon which issues the court found for the appellee in the sum of $420. On such state of the record it seems to us that the court was bound as a matter of law to find for the appellant on its complaint. There is nothing in the contract between the parties that is repugnant to the law of Indiana. The appellant was the owner of the property in suit and a factual situation had developed that entitled it to the immediate possession thereof. Demand therefor was made and refused and a finding denying the appellant's ownership and right of possession seems to us clearly contrary to the principles of law applicable to such a state of facts. As the matter now stands the appellant is liable for the return of the refrigerator to the appellee, or for the payment of its value when taken by the sheriff, notwithstanding the fact that the appellee is not the owner thereof and has not paid for the same and refuses to do so contrary to the terms of his contract.

In a case very similar to this the plaintiff sued for the possession of a motor truck and based his right thereto upon a certain conditional sale contract by the terms of which title remained in the plaintiff until the truck was paid for. The defendant filed a cross-complaint alleging fraud and misrepresentation in the execution of the contract and seeking damages resulting therefrom. The court held that the vendor had the right to elect to take possession of said motor truck for the failure of the purchaser to make the monthly payments required by the contract, but in doing so he rescinded the contract of sale and thereby forfeited all future payments and the purchase had the right to recover on his cross-complaint. Judgment below was for the plaintiff on his complaint and for the defendant on his cross-complaint which judgment was affirmed on appeal. General Motors Truck Co. v. Runkel, 1932, 95 Ind.App. 15, 179 N.E. 789. It may seem that our holding herein is at odds with this court's decision in the case of People's State Bank v. Hall, 1925, 83 Ind.App. 385, 148 N.E. 486, wherein the purchaser of a motor truck on a conditional sale contract was permitted to keep the same notwithstanding his default in monthly payments and also to recover damages for fraud. In that case, however, the truck was sold for $3,000 and the proof showed it to have been worth only $1,000 when sold, and the purchaser had paid $1,000 on the contract before he discovered the fraud. The action was to recover the difference between the actual value of the property as it was when received by the purchaser and...