Johnson v. Hoover

Woods, J.

— The appellees sued the appellant for the ■value of “one Excelsior Reaper and Mowing Machine Combined,” by them sold and delivered to him, at his request, ■for the price of one hundred and fifty dollai’s.

The defendant answered to the following effect: That, •about the time alleged in the complaint, he received and became the owner of the machine described in the plaintiffs’, bill of particulars in this way, to wit: Charles Ballard and Anselm Hobbs, being in the business of retailing agricultural implements, agreed to deliver said machine to the defendant, to be his property forever, upon consideration that ■one James T. Fisher would agree to execute his promissory note for $150, to said Ballard & Hobbs, whenever thereafter ■requested so to do by them, said note to be secured by mort.gage on certain real estate of said Fisher; that Fisher agreed to execute the note and mortgage whenever thereafter requested so to do by said Ballard & Hobbs ; and said machine was thereupon delivered to the defendant, under said agreement, and not otherwise ; that the defendant at the time had no knowledge but that he was dealing with said Ballard & Hobbs in their individual capacity, and if, in fact, they were acting as the agents of the plaintiffs in the transaction, the fact was not disclosed to the defendant. Wherefore, etc.

*397 A demurrer was sustained to this answer, and, the defendant declining to amend or plead further, judgment was given for the plaintiffs. The ruling on this demurrer presents the only question in the record.

The appellees have furnished no brief, and we are not informed in what respect the plea was deemed insufficient.

There can be no doubt that, if Ballard & Hobbs were the factors or agents of the appellees in the sale of the goods, they had a right to claim the contract as their own, and bring any suit which Ballard & Hobbs could have maintained if they had made the sale for themselves. Brooks v. Doxey, ante, p. 327. But it is equally true that, in appropriating the contract of sale as their own, the appellees were bound to» take it as a whole, and as their agents made it. They could not accept the naked sale and sue for the value, rejecting the special consideration and mode of payment, which were stipulated for. In other words, since, by bringing the suit, they recognized the sale as made by their agents, they can have, under the contract, only such remedies as Ballard & Hobbs, with whom the defendant dealt as principals, could have had, if they had, in fact, been the principals. If the sale was unauthorized, and the appellees were in no way es-topped, they might, probably, have reclaimed the property. But, by bringing assumpsit, they affirmed the contract. Story on Sales, sec. 434. We see no defect or invalidity in. the contract set out in the answer. It was clearly competent for Eisher to make a good promise to pay for goods sold and delivered to the defendant, as stated. The statute of frauds did not forbid it. The promise was original on the part of Eisher, enuring to the benefit of the defendant, but the defendant neither made any promise nor incurred any liability, to which the undertaking of Eisher could be called collateral. Downey v. Hinchman, 25 Ind. 453 ; Pettit v. Braden, 55 Ind. 201 ; Anderson v. Spence, ante, p. 315.

*398 It is true that specific performance of a promise to execute a note and mortgage can not be enforced. But, for the breach of such a promise, the injured party has his action for damages. Or, if the property was obtained fraudulently, upon a promise to execute such securities, the seller could doubtless disaffirm the contract and reclaim the property. Story, supra. These remedies were open to the appellees, but against Fisher and not against the appellant. The demurrer should have been overruled.

Judgment reversed, with costs.