Maytag Co. v. Dinneen

152 N.W. 111, 35 S.D. 329, 1915 S.D. LEXIS 46

• Court: South Dakota Supreme Court
• Decided: April 15, 1915
• Docket: File No. 3606
• Status: Published

Opinions

WHITING, J.

This action was brought to recover the value of a certain self-feeder. At the close of the trial a verdict was directed for plaintiff, and, from a judgment entered thereon and an order denying a new trial, defendant appealed. The facts are as follows: Respondent, located at Newton, Iowa, is a manufacturer of threshing machine feeders. In the month of January, 1910, one of its traveling agents took an order for one of said feeders from one Eubank, of Iroquois, S. D. In March following respondent, through such agent, entered into a contract in writing with appellant, an implement dealer at Huron, S. D., whereby he contracted to handle its machines in certain specified territory, including Huron and Iroquois. By such contract appellant agreed that he would settle for all machines upon receipt thereof, such settlement to be by notes payable on or before the 1st day of the following November; that, in case of failure to make such settlement, the account should become due and payable at once in cash; and that title to all machines furnished by respondent and the ownership of the proceeds of same should be, and remain, in respondent, and be subject to its orders and right of possession until payment for same. At the time of making this contract the Eubank order was turned over to appellant. Appellant immediately sent to respondent a written order directing it to ship a feeder to Eubank, to ’ make settlement with Eubank according to the terms of the Eubank order, and to turn over to appellant the papers taken in settlement for such feeder. Respondent delivered a feeder to Eubank, and received from him two notes secured by a chattel mortgage. These notes and the -chattel ■ mortgage constitute the “settlement” referred to in appellant’s order of shipment and- which he directed respondent to turn over to- him; -they also constitute the proceeds of the sale mentioned in the contract of agency. Respondent neither turned over to appellant nor tendered to him the Eubank notes and mortgage, but wrote him that, upon receipt of his note in settlement for the Eubank feeder, it would mail to him the Eubank paper. Appellant did not make such settlement, and respondent never turned over to or tendered to -him the Eubank notes and mortgage, but, after waiting' several months, demanded! payment for the Eiubank feeder. Appellant refused to make such payment -basing s-u-ch- refusal upon respondent’s failure to turn over to him the Eubank notes and mortgage. This action was afterwards brought to recover the -contract price of the Eubank feeder.

In directing a verdict for respondent -the trial -court must have considered that respondent was under no obligation to turn over or tender to appellant the Eubank notes as a condition precedent to its right to receive settlement from appellant. In this 'the trial court was clearly in error. Under the agency contract any sale to appellant was a conditional sale; but 'it could hardly be contended with any show of reason that, under the agency •contract, respondent would have had a right to have demanded settlement notes for a feeder 'before shipping same to appellant, as such contract did not contemplate that appellant should make settlement for a machine until receipt of same, at which time he could then settle either by cash - or by note as he might elect. Under the written order sent to it by appellant, respondent shipped the Eubank machine direct to, and itself made settlement with, Eubank. Respondent had the right to ship such machine to appellant in accordance with the terms of the agency contract, and, when it elected to ship the same direct to- Eubank, and itself make settlement with Eubank, it was bound to comply with the terms- of the order given it by appellant and under which it was acting-; it-was therefore incumbent upon it to at least tender the Eubank settlement papers to appellant before demanding a settlment from appellant; it could no' more require settlement by appellant before delivery or tender of the Eubank papers than it could require such a settlement, under the agency contract, before delivery or tender of a machine to .defendant. For respondent to retain possession of these Eubank notes while demanding that appellant give his notes was a condition peculiarly inconsistent with the provisions of the special directions controlling - the EMbank transaction.

The judgment and order appealed from are reversed.