E.A. Kinsey Co. v. Hall, Recr.

The trial was had on the intervening petition of the E.A. Kinsey Company and the answer of W.H. Hall, receiver of the Laminated Metal Products Company. The evidence is contained in an agreed statement of facts, which is as follows:

"That the Laminated Metal Products Company ordered the machinery as described in the intervening petition of the E.A. Kinsey Company, as follows, the Doty Punch Shear, on August 24th, 1921, the Brown Sharp Milling Machine, on August 21st, 1921, and The Kokomo Drill, on December 23rd, 1921, and at the time said machinery was ordered said the Laminated Metal Products Company, through Kline, the President of said Company, agreed orally to sign and deliver to said the E.A. Kinsey Company conditional sales agreements, together with certain promissory notes, secured by said conditional sales agreements. That said machines were delivered to the Laminated Metal Products Company on September 12, 1921, September 15th, 1921, and December 27th, 1921. That the E.A. Kinsey Company prepared notes and conditional sales agreements covering said machinery in accordance with the terms and conditions of said verbal agreements and mailed the same to the Laminated Metal Products Company, who received the same in the due course of mail, together with acknowledgments of the verbal order for said machinery, as per Exhibits A, B, and C, hereto attached.

"It is agreed that the Laminated Metal Products Company received and installed said machinery in their plant and operated and used the same up to the appointment of the receiver, and that the same are now in possession of the receiver, but that the Laminated Metal Products Company did not execute said conditional sales agreements, nor the notes secured thereby, nor make the initial cash payments agreed to be paid and that no conditional sales agreements were sworn to or recorded as provided by Section 8568 of the General Code of Ohio, although the E.A. Kinsey Company have frequently since said date of delivery demanded from said the Laminated Metal Products Company payment of said initial cash payment and the execution of said conditional sales agreements and promissory notes."

It appears from the exhibits attached to the agreed statement that the Kinsey Company shipped a Brown Sharp milling machine from Dayton, Ohio, that it was received by the Laminated Metal Products Company on September 12, 1921; that the Doty punch and shear was shipped from Janesville, Wisconsin, and was received by said company on September 15, 1921; that a Kokomo drill was delivered from the Kinsey Company to the Products Company on December 27, 1921.

When the delivery was made of the last mentioned article, the Laminated Metal Products Company had not paid the amount stipulated to be paid in cash, nor had they executed the notes and conditional sales agreements on the first two shipments.

The record further shows that from this date until the time of the appointment of the receiver, the petition for the appointment of the receiver being filed January 8, 1923, the Kinsey Company had never sought the return of the goods, nor had the cash payment provided for been paid, nor had any of the notes or conditional sales agreements been executed.

There was no express waiver on the part of the Kinsey Company, and it is claimed that until the cash payments were made and the notes and conditional sales agreements executed and delivered, no property rights would pass to the purchaser. In all the cases that we have examined the rule is stated that conditions precedent to the passing of the title may be waived, and whether or not the course of conduct of the E.A. Kinsey Company constituted a waiver is a question of fact.

In Williston on Sales (2 ed.), Section 346b, page 824, it is said:

"Even though a delivery to the buyer is not a waiver of a cash sale, because the delivery was for some purpose other than to transfer the property, the seller may lose his right to insist on the condition by a failure to reclaim the goods for an unusual time."

The court below in passing on this matter apparently found that allowing the property, the ownership of which it claims, to be used by, and to remain with, the Laminated Metal Products Company for over a year, without enforcing or attempting to enforce the conditions of the contract, or without any attempt to recover the specific property, constituted a waiver of the conditions, and that hence the Kinsey Company is only a general creditor.

Section 8568, General Code, provides that the sales agreement reserving title in the vendor, is void as against creditors unless it is in writing, is signed by the purchaser, contains a sworn statement by the vendor of the amount of the claim, and is deposited with the county recorder. No such agreements were executed or filed.

For the above reasons the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

CUSHING, BUCHWALTER and HAMILTON, JJ., concur.