Gaar, Scott & Co. v. Fleshman , 38 Ind. App. 490 ( 1906 )

Roby, C. J.

A demurrer for want of facts was sustained to appellant’s amended complaint. It refused to plead further and appeals from the judgment thereupon rendered. The action is founded upon an instrument in writing, by which appellee ordered from appellant a certain machine, agreeing to receive the same, subject to the conditions of a printed warranty, to pay freig’ht and charges from Eichmond, Indiana, and to pay, by note, at the time and place of delivery, $463. It also contained stipulations as follows:

“Machinery to be loaded on cars at Eichmond, Indiana, on or about May 1, 1903, and shipped to A. J. Eleshman, consignee, at Oorydon, Indiana station, County of Harrison, State of Indiana. * * * 7. The title to said goods shall not pass until settlement is concluded, and accepted by Gaar, Scott & Co. * * * This order is not subject to countermand.”

It is averred in detail that appellant complied with the terms of said agreement upon its part in all things, but that appellee refused to receive said machine on its arrival at Oorydon, refused to execute his note and mortgage in payment therefor, as provided in the contract, or to pay freight and charges; that appellant thereupon tendered said machine to him, demanded that he pay for the same in the manner specified by the contract, but that appellee refused and refuses to do so; that appellant immediately thereafter stored said machine as appellee’s property, has ever since and now holds it in storage as his property, and notified him thereof; that appellee is indebted to appellant in the sum of $463, and the further sum of $30 freight paid by it, which sums are due and unpaid.

1. Appellant’s proposition for reversal is that when the vendor has executed a contract by delivery or tender of the chattel sold, and the purchaser has refused to execute the contract by acceptance and payment, the vendor may hold the chattel for the purchaser and recover the contract price. Gardner v. Caylor (1900), 24 Ind. App. 521; Rastetter v. Reynolds (1903), 160 Ind. 133; Dill v. Mumford (1898), 19 Ind. App. 609. This proposition, is not controverted but its applicability is denied. The exception claimed is based upon the clause of the contract by which it is stipulated that title shall not pass until settlement is concluded and accepted.

2. It is established in this State that “in all cases of contracts for the sale of personal property, when it has any market value, the vendor, before he can recover from the vendee the contract price, must have delivered the property to the vendee, or have done such acts as vested the title in the vendee, or would have vested the title in him, if he had consented to accept it; for the law will not tolerate the palpable injustice of permitting the vendor to hold the property and also recover the price of it.” Pittsburgh, etc., R. Co. v. Heck (1875), 50 Ind. 303, 19 Am. Rep. 713. And see Indianapolis, etc., R. Co. v. Maguire (1878), 62 Ind. 140, 147; Dwiggins v. Clark (1884), 94 Ind. 49, 52, 48 Am. Rep. 140; Dill v. Mumford, supra; Ridgley v. Mooney (1896), 16 Ind. App. 362; Browning v. Simons (1897), 17 Ind. App. 45; Gardner v. Caylor, supra.

3. By the stipulation in the contract, title to the goods contracted for remained in appellant until settlement was concluded and accepted by it. So that unless such stipulation has been waived the measure of damages will be the actual injury sustained by appellant on account of appellee’s breach of contract. Fell v. Muller (1881), 78 Ind. 507, 513; Gardner v. Caylor, supra; Shipps v. Atkinson (1894), 8 Ind. App. 505; Dill v. Mumford, supra; Ridgley v. Mooney, supra. There is in the decisions of other courts than our own a diversity of opinion as to the vendor’s right to recover the contract price when, by the contract, title remains in him until payment, 24 Am. and Eng. Ency. Law (2d ed.), 1115, 1118, 1149, 1150.

4. The contract is one for the sale of goods. Eor its breach the vendee is liable, but he is not liable to pay the full purchase price, unless title has been transferred. In Colles v. Lake Cities Electric R. Co. (1899), 22 Ind. App. 86, this court said: “The property was to remain in the seller and therefore there was to be no complete absolute sale until the acceptance and payment.” In that case the option of accepting the property and thereby transferring title was in the vendee, but the effect of the nontransfer of title upon the right to recover the contract price is not different than in the case at bar. In that case the vendee had it in his power to prevent the transfer of title. In this ease the vendor alone determines whether he will retain title in default of settlement. “He might hold it or yield it as he chose.” Smith v. Barber (1899), 153 Ind. 322. Upon default of payment the vendor had the right- to treat the sale as absolute, and bring an action for the contract price. Such action evidences his .election to treat the sale as absolute. Turk v. Carnahan (1900), 25 Ind. App. 125, 81 Am. St. 85; Smith v. Barber, supra; 24 Am. and Eng. Ency. Law (2d ed.), 1136.

If appellee’s contention, that retaining title by the vendor prevents the maintenance of an action for the contract price, were conceded, it would as effectually bar a suit brought after actual possession of the machine had been taken as it would one under the circumstances here disclosed. In either case an election to sue for the purchase price operates to vest the complete title in the purchaser. It has sometimes been attempted to sustain the right of a vendor to recover the contract price, upon the theory that “if a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so and thereby binding himself to pay the whole sum.” White v. Solomon (1895), 164 Mass. 516, 42 N. E. 104, 30 L. R. A. 537; Register Co. v. Hill (1904), 136 N. C. 272, 48 S. E. 637. The trouble with this is that the contract is not one for the payment of a definite sum of money upon the happening of a certain' event, or at a stated time; but it is a contract for the sale of personal property, the measure of damages for the breach of which is fixed by law as above stated. Three members of the court dissented in White v. Solomon, supra, and the dissenting opinion of the chief justice expresses hoth the better reason and the better law.

The writer believes that the opinion in Kilmer v. Moneyweight Scale Co. (1905), 36 Ind. App. 568, should be modified, but the majority of the court do not think there is any conflict.

Judgment reversed, and cause remanded, with instructions to overrule the demurrer to the complaint, and for further consistent proceedings.

Black, P. J., Myers, Robinson and Wiley, JJ., concur; Comstock, J., not participating.