Holland's Assignee v. Cincinnati Desiccating Co.

JUDGE GUPPY DELIVERED THE OPINION OF THE COURT. The petition of the plaintiff in this action alleges in substance that on the 22d of February, 1893, it entered into a written contract with the appellant T. E. Holland, whereby said Holland agreed to purchase of it certain amounts of merchandise, and to use reasonable efforts to sell same, and appellee agreed to furnish same at specified prices for which said Holland was to pay cash for spring goods, July 1, 1893, and pay 1st of January, 1894, for goods ordered after 1st July, 1893. That pursuant to the contract appellant purchased of it, on 20th of August, 1893, goods, etc., as follows, to-wit : 100 bags fine ground bone at $26 per ton......$260.00 50 bags Ohio Valley Phosphate at $20 per ton.. 100.00 50 bags Phoenix Phosphate at $18 per ton...... 90.00 of the value of $450, which was delivered to appellant, Holland, for which he agreed to pay said sum on or before Jan-1, 1894. That bythe terms of the contract it was agreed that a failure of either party to comply with the conditions of the contract should be deemed sufficient cause for rescinding the same. Appellee further alleged that on —day of September, 1893, Holland made a deed of assignment to appellant Howell for the benefit of all his creditors; that said Holland is hopelessly insolvent and had transferred all his property to Howell, and that it will not pay over twenty-five cents on the dollar of his indebtedness, and has thus put it out of his power to comply with the contract made with plaintiff and pay said-sum of $450 on or before January 1, 1894, and asked that said contract be rescinded' and the [457] goods above set out to be restored to them, and for proper relief. Appellants demurred to the petition, which demurrer was overruled by the court, and defendants failing to answer or plead further, judgment was rendered in plaintiff’s favor for the recovery of the goods sued for, and from that judgment this appeal is prosecuted. A copy of the contract set out by appellee is filed as part of the petition. Appellee insists that the petition shows that Holland has put it out of his power to comply with the terms of the contract, although the debt would not be due until January, 1894, the petition being filed 25th September, 1893, and therefore appellee was entitled to have the contract rescinded, and also contends that a rescission of the contract entitles it to a judgment for the goods sold and delivered to appellant Holland. The contract seems to have been carefully drawn so far as the interest of appellee is concerned. It is careful to provide that all goods left unsold at the close of the season shall be the sole property of the dealer, and that appellee shall not in any manner be expected to carry the same until the next season. The contract also provides that not less than fifteen tons shall be ordered, all to be ordered during the year 1893. Also provides that appellee shall not be liable if it fails to fill all orders sent. Appellant was only allowed to sell in a certain locality or territory. There is no provision in the contract that the title to the property should remain in appellee, or that it in any event should have the right to take possession of the goods. We do not mean to say that such provisions would be enforceable if in the contract. No fraud on the.part of appellant is alleged; no lien on the goods was retained in the contract. It seems clear to us that the goods were sold and delivered to appellant Holland, and that the title passed to him. The rescission of [458] tbe contract provided for could only have the effect to release appellee from obligations in the future, and could in no way affect transactions theretofore executed. For the reasons indicated, the judgment appealed from is reversed, and cause remanded with directions to the court below to sustain the demurrer, and for further proceedings consistent with this opinion.