Leffler v. Watson , 13 Ind. App. 176 ( 1895 )

Gavin, J.

Action in replevin to recover four barrels of whisky shipped by appellees to Simonds & Co., and by them sold to appellant, from' whom they were replevied by appellees.

The insufficiency of the evidence is earnestly presented by counsel, but their argument, while strong and forcible, is applicable rather to the trial court than to the appellate tribunal. Here the rule is thoroughly established that we. must view the evidence in the light most favorable to appellees, and if, when so regarded, there be some evidence fairly sustaining every material fact essential to their recovery we cannot interfere with the finding of the trial court, even though, as here, the preponderance of the evidence appear with the appellant. Currie, etc., Co. v. Byfield, 9 Ind. App. 180.

There is in this case evidence to show that Simonds & Co. bought of appellees five barrels of whisky on. these conditions: one to be shipped immediately and the other four about March 25, provided the first gave satisfaction. The first barrel was duly received, and on March ,25th or 27th the other four were shipped. Prior to this, however, Simonds had written and mailed to appellees a letter directing them not to send the four barrels. In reply to this letter appellees wrote that they were very sorry but it was not received until after the shipment, and directed Simonds to take care of the goods until they heard from them. Shortly after the x-eceipt of the four barrels Simonds wrote appellees that he could not accept this whisky and held it subject to their order.

They thereupen wrote Simonds & Co. to hold the goods for them until their traveling agent could come to Anderson and make disposition of them.

The whisky remaixied in the hotel run by Simonds & Co. until in May, when they sold to appellant the hotel and contents, including the propex’ty in controvex-sy. Appellees’ agent had in the meantime been to Anderson to remove the whisky, but found one of the Simonds firm dead and the other too sick to attend to business, and therefore defended getting the whisky. While there are many circumstances militating against appellees’ claim, it seems to us clear under these facts that Simonds & Co. having first countermanded the order, and then notified appellees that they could not accept the goods and held them subject to their order, and appellees having acquiesced in this proposition and requested them to hold the goods for them (appellees) until their traveling man could come and dispose of them, Simonds & Co. held the goods simply as bailees for appellees, and without any claim or right of ownership therein. Thus holding them they could not sell them to appellant and convey to him any better title than they themselves possessed in the absence of facts creating an estoppel. Payne v. June, 92 Ind. 252.

This is not a case where one party comes into court asking its aid to enable him to rescind a contract in whole or in part. If we were to regard the contract as absolute and then rescinded, the rescission was completely agreed upon and executed by the parties themselves, it was fait accompli. If the title to the goods ever passed to Simonds & Co., no actual delivery was necessary to repass it to appellees. Bertelson v. Bower, 81 Ind. 512; Wright v. Maxwell, 9 Ind. 192; Henline v. Hall, 4 Ind. 189.

There was no error in permitting appellees to testify to the transactions with Simonds & Co., although both members of that firm were dead. Their estates were not represented in this suit in any way. The case of Durham v. Shannon, 116 Ind. 403, conclusively decides this point against appellant.

Taking the evidence altogether, the loss of the letter, whose contents were proved by the bookkeeper, was sufficiently established. If it were true that the pre-' liminary proof was insufficient the subsequent evidence accounted for the letter fully, so that in no event could there have been any harmful error in the court’s ruling. Willison v. McKain, 12 Ind. App. 18; Rowell v. Klein, 44 Ind. 290.

Filed June 11, 1895.

There was nothing in the evidence to indicate the existence of any duplicates or copies.

The answer to question 14 of Romain’s deposition is not liable to the objection urged. It does not purport to give the contents of the letter.

The record does not show any objection made to the testimony of Edward H. Watson, that appellees were the owners of the goods, save that he was incompetent to testify by reason of the death of the members of the firm of Simonds & Co. As to this proposition, we have already ruled.

We have considered all the objections discussed by counsel and find no cause for reversal.

Judgment affirmed.