American Thresherman v. Citizens Bank of Anderson

Tbe following opinion was filed April 29, 1913:

EeewiN, J.

Tbe only questions necessary to be considered upon this appeal are (1) whether tbe findings are supported by tbe evidence; and (2) whether tbe findings support tbe judgment.

We have examined the record with care and are convinced that it cannot be said that the clear preponderance of the evidence is against the findings. The evidence is ample to sustain the finding that the intervener, Citizens Bank of Anderson, was the owner of the property at the time of the attachment. It appears clearly from the evidence that there was an agreement between the defendant and the intervener to the effect that the intervener.would discount drafts drawn for the purchase price of cars when sold with the bill of lading attached, the drafts to be payable to the order of the in-tervener, it to pay ninety per cent, of the drafts to defendant, and bold ten per cent, to cover interest at six per cent, on the amount of money paid, and use the balance of the ten per cent, to cover any expense that the intervener might be put to in fully realizing upon the drafts, and that if any balance remained of the ten per cent, reserved it should be credited *372 on indebtedness of defendant to intervener. Tbis business system, the evidence shows, was followed in the instant case, — the draft was drawn for the purchase price of the ears and, with the bill of lading attached, delivered to the inter-vener bank, ninety per cent, thereof paid to defendant and ten per cent, held in accordance with the agreement above mentioned. The evidence shows that it was the custom of the intervener in such dealings to deduct ten per cent, of the face of drafts to cover interest, collection charges, and any expense incurred in handling such transactions; that the present transaction was carried out pursuant to such agreement. The cars were delivered to the railway company for shipment, a bill of lading issued to defendant as consignor, cars consigned to defendant as consignee, notify Hokanson Automobile Company, the draft for purchase price drawn on Hokan-son Automobile Company, payable to the order of intervener, and the draft and bill of lading discounted by the intervener bank, and delivered to it. The intervener indorsed the draft to the Bank of Wisconsin for collection. The amount of the draft less ten per cent, was credited by intervener to defendant and the ten per cent, held to cover interest, costs, and charges which might be incurred, and the balance, if any, to be credited to defendant. The evidence clearly shows that the title to the property described in the bill of lading passed to the intervener. We think there is sufficient evidence to support a finding that there was no intent to defraud creditors. All the facts set forth in the findings respecting the manner in which the business was done under the agreement between the defendant and the intervener and the uniform course of business of the intervener prior to May, 1911, are well supported by the evidence.

Point is made by appellant that the place of performance of the contract was Madison, Wisconsin. While it is true that the arrangement contemplated the delivery of the cars *373 at Madison, Wisconsin, the contract between the defendant and tlie intervener by which the title to the property passed to the intervener was made in Indiana. But even if the contract were made in Wisconsin we cannot see that it would change the result of this appeal.

It is also' argued hy appellant that the intervener was simply the agent of defendant to collect the purchase price of the automobiles from the Hokanson Automobile Company. If this were so there would be force in some of counsel's argument. But since we agree with the court below that the title to the property passed to the intervener in Indiana, it becomes unnecessary to consider'much of counsel’s argument.

Counsel for appellant further argues that there remained in the possession of the intervener some portion of the ten per cent, reserved after paying interest, costs, and charges, and that amount is subject-to the claim of plaintiff. But under the agreement and transfer -of the property nothing remained which belonged to defendant. If there was any surplus it was by the terms of the agreement to be credited upon the indebtedness of defendant to the intervener, which at the time of the transfer was about $7,000.

Under the findings supported by the evidence we aTe of opinion that the title to the property in question passed to the intervener, and that the appellant has shown no right to the property or money in controversy. 36 Cyc. 218; First Nat. Bank v. Mt. Pleasant M. Co. 103 Iowa, 518, 72 N. W. 689: Shaffer v. Rhynders, 116 Iowa, 472, 89 N. W. 1099; Temple Nat. Bank v. Louisville C. O. Co. (Ky.) 82 S. W. 253; Paxson Bros. v. Warfield, 6 Ga. App. 315, 65 S. E. 34; Am. Nat. Bank v. Henderson, 123 Ala. 612, 26 South. 498; Leinkauf B. Co. v. Grell, 62 App. Div. 275, 70 N. Y. Supp. 1083.

It follows that the judgments appealed from are right and must be affirmed.

By the Court. — Judgments affirmed.