Wayne Oil Tank & Pump Co. v. Middlekauff

Stockbridge, J., delivered the opinion of the Court. This case arises out of a conditional salt' under the following circumstances: The appellant instituted in the Circuit. Court- for Washington County an action of replevin against J. M. Middlo;kauff for the recovery of a side walk pump and a 280 gallon oil tank. Appellant, in June, 1919, had sold the goods sought to be recovered to G. B. Miller of Fairplay, Md., in accordance with the terms of a written contract, dated June 12, 1919.

The condition of the contract was: ²¹⁷ “The equipment covered by this contract will he used in the business of the vendee at the address first above given and none of same shall be removed therefrom without the vendor’s previous written consent. In case of deferred payments the vendee agrees that title to said property shall remain in vendor until it is paid for in full, which shall include the payment of any note given and the payment of any judgment secured for same. “The signing and delivering of any note shall not be deemed nor considered a payment or waiver of any term, provision or condition of this contract.” In January Mr. Miller wrote to the appellant the following letter: “Pairplay, Md. “Wayne Oil Tank & Pump Go. “Dear Sirs: “As I have failed in business will be obliged to write you in reference to primp. “L have sale for it at $200.00, so kindly advise me what to do. If I must sell it and forward balance clue you, or what I must do, as I don’t want to get in any trouble about it; that would he the best way for you to get your money. I have a ready sale for it right here in this community, so kindly advise me as soon as possible so if you are satisfied I can make the sale before it is too late. “Very respectfully yours, “G. B. Miller.” To which the appellant replied as follows: “Port Wayne, Indiana, January 24th, 1920. “Mr. Q. B. Miller, “Pairplay, Md. “Dear Sir: “It seems that the people living in Pairplay desire to use fair play in all their transactions, and we are glad to know that you are desirous of finding out ²¹⁸ just what your balance is on your account, stating that you will settle in full upon receipt of this information. “If you have received an offer of $200.00 for your equipment accept it at once, as by so doing, you will be ahead about $18.10, as you have already paid $20.00 on the balance due us, which was $201.60.

We would ■ appreciate your sending your remittance to us at once for the amount of $181.60 less 5 per cent, discount for cash, enabling us to give a clear bill of sale, which will enable you to transfer the equipment to the new owners at once. “Yours very truly, “F. E. Mills, Collection Manager, “PE :YF” By By the agreed statement of facts filed in the case it appears -that Mr. Middlekauff had knowledge that the property in question had been sold under a