Minchrod v. Windoes

Erazer, J.

Replevin for “a box of skins and furs, marked J. Windoes, Logansport, Indiana.” It is objected to the complaint that the property was not sufficiently described. It seems to us that it was sufficient for the purposes of identity. The complaint was sworn to, but there was no separate affidavit. A ’question is made as to this, but there is nothing whatever of substance in it. The *289 objection merely amounts to this: that there should have been another piece of paper filed.

Minchrod answered in three paragraphs: 1. General • denial. 2. That a specified portion of the furs was his own-property; that he had previously sold them to one Hildebrand, for $140 07, Hildebrand claiming to be the plaintiff’s agent; that the property so sold was not delivered, but was1' to he shipped by Minchrod by express to the plaintiff' at ■ Logansport, Indiana, to be delivered to the plaintiff' by the : express company, upon the payment of the purchase' money; that they were shipped accordingly, and that the' plaintiff' did not pay or tender the money, wherefore as to • those furs he demanded judgment, &c. 3. That he sold to. the plaintiff a specified portion of the furs, in Illinois, for $140 07, to be shipped to Logansport, and paid for by the-: plaintiff on delivery, other furs of the plaintiff' being ship-' ped in the same'box, and none to be delivered until 'the pay-. ment of the purchase money and charges, and the whole.to be held by Minchrod until such payment was made; that such payment was not made, &c. The plaintiff replied to the second and third paragraphs of the answer: 1. General denial. 2. That he had - deposited with Ililde-■ brand $1,000, and took from him the following paper: “ Received, Kankakee, December 2,1864, of J. Windoes, agent, one thousand dollars for the purchase of furs, as per prices ' given, the furs to be delivered when called for, or the money returned. (Signed,) J. Hildebkand ;’■’ which expresses the . whole contract between the plaintiff and Hildebrand; that Hildebrand was not the plaintiff’s agent, but was merely bound .- to deliver furs therefor at fixed prices, or repay the money on demand; that the box of furs in controversy was purchased by Hildebrand under the foregoing arrangement, and none ■ other;-that the furs purchased of Minchrod were packed with other furs- bought by Hildebrand, as aforesaid, without any mark, sign or device by which they could be distinguished; that after crediting Hildebrand with the entire *290 contents of the box, there would still remain the sum of $149 21 to be accounted for by him; that the plaintiff never made any contract or had any dealings whatever with Minchrod. Minchrod demurred unsuccessfully to the second paragraph of the reply, and now presents the question here.

D. D. Dykeman, for appellant. JD. JD. Pratt and JD. P. Baldwin, for appellee.

We think that this paragraph was a good reply to the third paragraph of the answer, amounting, however, merely to a denial of it. But to the second paragraph of the answer, it seems to us insufficient as a reply. It admits all the facts averred by the defendant in that defense, and contains nothing in avoidance of them. Certainly the defendant could lawfully make such a contract with Hildebrand as he alleges that he did make, and it is quite clear that if the reply be true, if the other furs in the box were Hildebrand’s, as they must have been until delivery, if the latter was not the agent of the plaintiff’ in their purchase, then the plaintiff' could claim no advantage from a confusion of the goods. It did not concern him. It was a matter between the defendant and Hildebrand. None of 'the property was the plaintiff’s until delivery to him. True, he was not bound to accept the property with the burden imposed, but he must take it cum onere, or not at all. He had a right to claim the unconditional delivery of furs from Hildebrand, or the money. He could not lay violent hands even upon furs bought and paid for by Hildebrand, much less upon those belonging to Minchrod. In fact the reply shows a state of facts in connection with the second paragraph of the answer which would defeat the entire action, if that defense were not limited to a part.,

The judgment is reversed, with costs, and the cause remanded, with directions to sustain the demurrer to the second paragraph of the reply.