
    The Domestic Sewing Machine Co. v. Arthurhultz.
    Promissory Note. — Sale.—Contract concerning Title to Chattel. — Assignment. — jReplevin.—The endorsement in blank of a promissory note which stipulates that a certain chattel, therein described, shall remain the property of the payee until the note has been paid, does not, of itself, vest the title to such chattel in the endorsee, so as to enable- him to replevy such chattel, on demand, for non-payment of the note.
    From the Henry Circuit Court.
    
      M. T>. Harry j D. W. Chambers and E. Saint, for appellant.
    
      J. Brown, J. M. Brown and L. P. Mitchell, for appellee.
   Howie, C. J.

The appellant sued the appellee, in this action, before a justice of the peace in Henry county.

In its verified complaint, the appellant alleged, in substance, that it, the appellant, was the owner and entitled to the possession of one Domestic Sewing Machine, Ho. 78,129, of the value of forty dollars, of which the appellee had possession without right, and which was unlawfully detained from the appellant hy the appellee ; and that the same had not been taken by virtue of any execution or other writ against the appellant. Wherefore the appellant demanded judgment for the recovery oj said machine, and for five dollars'damages for the detention thereof

The trial of the cause before the justice resulted in a ver■diet and judgment in favor of the appellee. On appeal to the circuit court, the cause was tried by the court, Avithout a jury, and a finding Avas made for the appellee. The appellant’s motion for a new trial having been overruled,- .and its exception saved to such decision, judgment was rendered on the finding.

The only error assigned by the appellant, in this court, is the decision of the circuit court in overruling its motion for a neiv trial. The causes for a ne-w trial, assigned by the appellant in its motion therefor, Avere as follows:

1. That the finding of the court was not sustained by .sufficient evidence; and,

2. That the finding of the court was contrary to law.

It will be seen, therefore, that the only question presented for decision, in this case, is this: Was there any sufficient evidence in the record to sustain the finding of the court ?

As necessary to a proper understanding of .this question, and of our decision thereof, we set out the evidence as we .find it in the record.

“ Plaintiff’s evidence:

“ M. D. Harry, being duly sworn, says: As agent for the plaintiff, I made a demand on the defendant for this machine in controversy, before the commencement of this suit, and offered to deliver up the note or article of agreement sued on. The machine is Avorth forty dollars. '
“ The following article of agreement Avas then offered in ■evidence by the plaintiff, as folloAvs:
“ ‘ $40.00. April the 25th, 1873.
“ ‘ Six months after date, we promise to pay to the order ■of Child Brothers the sum of forty dollars, payable at Eirst National Bank, Neiv Castle, Ind., value received. The draivers and endorsers severally waive presentment for payment, protest and notice of protest and non-payment of this note. The seAving machine described herein, for which this note is given, shall remain the property of' Child Brothers until this note is fully paid. No person is-authorized to receive a credit upon this note except the holder thereof, and said credit shall be endorsed upon this-, note at the time of payment.
(Signed,) ‘“L. Artiiurhultz.
“ ‘ Style i-c. Plate No. 78,129.
“ ‘ Due Oct. 25th, 1873.
P. O. address, Sulphur Springs. 30,894. Red No. 1,643/'
“ Said article of agreement having upon it the following-endorsement, to wit: ‘ Child Brothers.’
“Defendant gave the following evidence, to wit:
“ Leander Arthurhuitz, sworn, says:
• “ I am the defendant: I -gave another note, for the-same amount as the one given in evidence by the plaintiff, for the machine in controversy. The price of the machine-was eighty dollars.. The other note for forty dollars has-been fully paid by me and taken up,
“ This was all the evidence in the cause; and upon this-evidence the court found for the defendant.”

The entiz’e argument of the appellant’s counsel, in theizbrief of this cause in this court, is comprised in. the following sentence:

“We don’t think this case needs argument; we therefore refer, the court to the following authorities, which-fully decide this case.” Then follow a number of cases from our own reports.

We have carefully examined the cases cited by couzzsel,. and it seems to us that those cases do not “ fully decide-this case.”

It. may be considered as settled law, in -this State, that, where it is stipulated in a written contract in relatiozz to the sale of personal property, such as the note or article of agreemezzt, as it is- called, given in evidence by the appellant, that the property sold shall remain the property of the vendor until it has been paid for, the title to such property will not pass to the vendee thereof until such .payment has been made. This doctrine is settled by the following authorities, cited by the appellant’s counsel, and ■claimed by them to be decisive of the case at bar, to wit: Thomas v. Winters, 12 Ind. 322; Shireman v. Jackson, 14 Ind. 459; Plummer v. Shirley, 16 Ind. 380 ; Dunbar v. Rawles, 28 Ind. 225; and Sims v. Wilson, 47 Ind. 226. The same ■doctrine is fully considered and adhered to in the more re■cent ease of Bradshaw v. Warner, 54 Ind. 58.

It may be conceded, that the appellant’s evidence in this •case showed that the appellee was not the owner of the sewing machine in controversy; but it would not follow, by any means, from the fact thus shown, either that the appellant was the owner, or that it was entitled to the possession of said machine, either at the commencement of this action or at any time afterward. It seems to us that the appellant’s evidence clearly showed that the title to the ■sewing machine, at least at the time of the trial, was in ■Child Brothers; and this title, so far as the evidence shows, was not inconsistent with the appellee’s possession of the machine. In an action to recover the possession of personal property, it is a good defence to show'- that the title to the property is in a stranger to the record, where the complaint •alleges title in the plaintiff. Landers v. George, 40 Ind. 160 ; and Thompson v. Sweetser, 43 Ind. 312.

In the case now before us, it was alleged in the complaint, that the appellant, was the owner and entitled to the possession of the sewing machine in controversy. It was necessary that the appellant should sustain this allegation by evidence. There was no evidence introduced by the appellant, on the trial, in support of its OAvnership or right to the possession of the sewing machine. It is true, that the appellant gave in evidence a note, or, as it is called, an article of agreement, signed by the appellee, but that instrument did not show, nor tend to show, that the appellant was the owner, or entitled to the possession, of the sewing machine. On the-contrary, as it seems to us, this note showed upon its face that the appellant was not the owner of the sewing machine, hut that the title thereto was in third persons, who were: strangers to the record of this action ; for the note in question contained this clause : “ The sewing machine described, herein, for which this note is given, shall remain the property of Child Brothers until this note is fully paid.” This-was the appellee's contract with Child Brothers. The appellee stipulated, and by accepting the note Child Brothers agreed with him, that the sewing machine should remain their property, not until they might endorse the note to-some stranger, but “ until this note is fully paid.” When this action was commenced, it appeared that the note in suit-was not fully paid, and therefore it followed, that, by the terms of the note, the sewing machine remained the property of Child Brothers. If it were conceded that Child Brothers might, under the agreement contained in the note,, sell and assign to a third person the property reserved to-them personally in the sewing machine, which we doubt but do not decide, it seems very clear to us that they did not, by their endorsement in blank of said note, sell and assign their property in said machine to the appellant,, and there is no other evidence of any such sale or assignment in the record.

We think that the evidence failed to show that the appellant was the owner and entitled to the possession of the-sewing machine in controversy; and therefore we hold, that the court did not err in overruling the appellant’s motion for a new trial.

The judgment is affirmed, at the appellant’s costs.  