Appeal from Circuit Court, Fayette Coun- | wholesale, in amount equal to the unpaid ty; George L. Gray, Judge. Action by David W. Andre against John G. Murray and others. Judgment for defendants, and plaintiff appeals. Transferred from Appellate Court under Burns' Ann. St. 1908, § 1394. Reversed. See, also, 98 N. E. 322. Finley H. Gray, L. L. Broaddus, and George C. Florea, all of Connersville, for appellant. Reuben Conner, Raymond Springer, G. E. Johnston, and Allen Wiles, all of Connersville, for appellees. ERWIN, J. Action in replevin. The only error assigned arises on the sustaining of appellees' demurrer to the complaint. Appellant alleges in his complaint that on May 28, 1906, he conditionally sold and delivered to appellee John G. Murray and one Edwards a retail stock of drugs and other property, located in a certain business room in Connersville, Ind. The contract of sale was in writing, and is as follows: "This indenture witnesseth: That David W. Andre, of the city of Connersville, in the county of Fayette, in the state of Indiana, has this 28th day of May, 1906, for the sum of two thousand ($2,000) dollars, and full compliance with the terms and conditions thereof, sold and transferred to John G. Murray and Arthur J. Edwards, of said city, county, and state, the following described personal property and chattels, located in said city, county, and state, and described as follows, to wit: All the vendor's stock of retail drugs, sundries, paints, oils, liquors, the same to include all retail stock on hand of vendor of every description, now located in what is known as the Opera House Drug Store Room, at No. 128 W. Fifth street, in said city; also seven show cases, two pair of scales, and one prescription scale, located in said room. The terms and conditions, above mentioned, are that said vendees shall pay to said vendor the sum of two thousand ($2,000) dollars, with interest thereon at the rate of six (6) per cent. per annum from date hereof until paid, said sum and interest thereon to be payable in monthly installments of not less than twenty ($20.00) dollars each, the same to be applied, first, to the payment of interest, and the balance to said principal; the first installment coming due at the expiration of one month from the date hereof, and one installment at the expiration of each month thereafter, until the whole amount of principal and interest is paid. The retail stock shall remain where the same is now located until said sum, together with all interest thereon, is paid in full; and until said principal sum and interest is paid said vendees shall keep said stock renewed and replenished, so that same shall at all times be maintained at not less than the cash value, at balance of said sum and interest, and said stock so added to stand hereunder in place of stock sold. That vendees shall pay to vendor, as rent for said room where said retail stock is now located, the sum of $8.25 each week until said principal of $2,000 and interest is paid; the first weekly payments thereof coming due one week from date hereof, and one payment of $8.25 coming due each week thereafter until said principal and interest is paid, as above provided." It is also averred in the complaint that by the mutual mistake of each of the parties to the contract, and by the mistake of the scrivener who drafted the same, the provision "that the title to all of said property shall be and remain in the said vendor until full payment of said purchase price, and that upon default of said vendees in any of the conditions that said vendor shall be entitled to the possession thereof," was omitted from said agreement, as reduced to writing; that subsequently Edwards sold and assigned his interest in the property to Murray, who assumed the obligations of the original contract of purchase. It is further averred that on July 28, 1908, Murray and Edwards made default, in that they failed and refused to pay the monthly installment of principal and interest then due, and informed the appellant that they would pay no further amounts upon said contract, and that on said date there was a balance of said purchase price and interest unpaid in the sum of $1,727.50; that on said day the vendees made further default, in that they had failed to keep said stock renewed, as provided, but had sold and reduced the same, so that said stock did not exceed $1,000, wholesale value, including renewal goods, and that the value of the original goods remaining did not exceed $200; that on said day appellee Murray, assuming to own said property, assigned the same as a failing debtor to appellee John Payne, as assignee for the benefit of his bona fide creditors; that after the bringing of the original action, upon petition of creditors of Murray and of the partnership of Murray & Edwards, said Murray, individually, and said partnership were adjudged involuntary bankrupts, and that appellee Charles W. Neff was duly appointed trustee in bankruptcy; that by the proceedings in bankruptcy the assignment to John Payne was superseded and annulled. The prayer is for a reformation of the contract, so that the same shall include the omitted conditions, as agreed upon, judgment for the possession of the goods found and taken on the writ of replevin, and for the value of the goods not found. The appellees separately filed demurrers to the complaint for want of sufficient facts, which demurrers were sustained by the court. Appellant refusing to plead further and elect ing to abide by his complaint and exception for; the only condition being that the goods to the ruling of the court in sustaining the should not be removed from the town of demurrer thereto, judgment was rendered Geneva where located-a thing he was not for the return of the property taken on the attempting to do. writ of replevin to appellee Neff, trustee in bankruptcy, and that defendants recover costs. As the demurrer admits the truth of all facts well pleaded, we must, in considering the legal sufficiency of the complaint, treat the same as including the omitted stipulation in regard to title remaining in the vendor. The contention between the parties in this cause is the construction to be given the contract between appellant and the parties to whom he sold the stock of drugs. It is contended by the appellant that the contract makes a conditional sale; and that the ownership of goods is, by the terms of the contract, retained by appellant until the price therefor has been paid. The appellees contend that the delivery of the goods with the provision that they should be sold by the purchaser at retail is inconsistent with a conditional sale; and that title passed to the purchaser, his creditors and assigns. [1] It is well settled by the authorities in this and other states that a sale of a stock of goods to be sold at retail authorizes the vendee to sell them in the regular course of trade at retail, and the purchaser will take title thereto. Thomas v. Winter, 12 Ind. 322; Shireman v. Jackson, 14 Ind. 459; Hodson v. Warner, 60 Ind. 214; Dunbar v. Rawles, 28 Ind. 225, 92 Am. Dec. 311; Domestic, etc., Co. v. Arthurhultz, 63 Ind. 322; Bradshaw v. Warner, 54 Ind. 58; Payne v. June, 92 Ind. 252; Lanman v. McGregor, 94 Ind. 301; Sears v. Shrout, 24 Ind. App. 313, 56 N. E. 728. Some of the decisions of the court in this state have seemingly gone so far as to hold that a transaction of this kind should be considered as an absolute sale, and that the contract should be treated as a chattel mortgage, holding that the right given the vendee to sell at retail is inconsistent with the retention of title in the vendor. In none of the cases so holding has the exact question presented in this case been determined; none of them involving a sale other than at retail and in due course of trade. In the case of Winchester, etc., Co. v. Carman, 109 Ind. 31, 9 N. E. 707, 58 Am. Rep. 382, the facts shown were that the vendee had sold the wagons in question in due course of trade, and at retail. In the case of Steele v. Aspy, Adm'r, 128 Ind. 367, 27 N. E. 739, the vendor's administrator undertook to have a receiver appointed to take charge of a stock of goods sold to Steele by one Nelson, deceased. That case is not in point here, for the reason that there was no condition in said contract that the ownership of the goods should be retained by the It is well settled by the authorities in this and other states that goods sold, where title is retained in the vendor, with the privilege to the vendee to sell the same at retail, does not authorize the sale of such a stock of goods in bulk. McGirr v. Sell, 60 Ind. 249; Hench v. Eacock, Trustee, 21 Ind. App. 444, 52 N. E. 85; Lett v. Eastern, etc., Plow Co., 46 Ind. App. 56-63, 91 N. E. 978; Pratt v. Burhans, 84 Mich. 487, 47 N. W. 1064, 22 Am. St. Rep. 703; Rogers v. Whitehouse, 71 Me. 222; Burbank v. Crooker, 7 Gray (Mass.) 158, 66 Am. Dec. 470; Perkins v. Mettler, 126 Cal. 100, 58 Pac. 384; Triplett v. Mansur, etc., Co., 68 Ark. 230, 57 S. W. 261, 82 Am. St. Rep. 284; Marvin Safe Co. v. Norton, 48 N. J. Law, 412, 7 Atl. 418, 57 Am. Rep. 566; Bunday v. Columbus, etc., Co., 143 Mich. 10, 106 N. W. 397, 5 L. R. A. (N. S.) 475. [2] In the case of Hench v. Eacock, supra, the same question was involved as is presented in this cause, and it was held that, while the contract would permit a sale of the goods in question at retail, it did not warrant a sale in bulk, and that the original vendor might retake the goods from a mortgagee of the vendee. In the case of McGirr v. Sells, supra, that being an action in replevin to recover two barrels of whisky, sold by appellee to one McCoy on a contract conditioned that the title should not pass until payment should be made in full, and which goods were levied on and offered for sale to satisfy an execution in the hands of a constable, which execution was issued upon a judgment in favor of other creditors than appellee, Worden, J., in that case (60 Ind. on page 257) uses this language: the plaintiff had authorized McCoy to sell the whisky at wholesale, that would have ended the question; but his authority to McCoy to retail, in his own name, did not necessarily carry the inference that the title to the liquor was in the latter. This was the purpose for which the liquors were placed in his possession, and was consistent with the plaintiff's ownership of the property." * "If In the case of Burbank v. Crooker et al., 7 Gray (Mass.) 158, 66 Am. Dec. 470, involving a sale of a stock of goods, in bulk, in a country store, bought conditionally that the title should not pass until paid for, the court, speaking by Dewey, J., held that the purchaser took no better title than that held by the original vendee, but say that, had sale been made of individual articles in the ordinary course of business, a different rule would prevail; and that the plaintiff might have been estopped to assert any right adverse to such purchaser. Assignee for the Benefit of Creditors, supra, | any reference to any instruction given by the that court held "that a conditional sale of goods to a retail merchant is binding upon him and his assignees, but not upon vendees in the regular course of business; and that one to whom he sells the whole stock took no title. Neither would his assignees in bankruptcy." It is insisted that, as the contract of sale provides for the payment of rent, this is con clusive as to the nature of the transaction, and is conclusive that the instrument is a chattel mortgage. This is a question we are not called upon to decide, as the failure to pay rent is not alleged as one of the breaches of the contract. Neither does the contract make any provision as to return of the property on failure to pay rent. court, and under the heading "Argument" set out certain instructions given, and asserted error in the giving of them, with reasons in support thereof, did not comply with Supreme Court rule 22, cl. 5 (55 N. E. vi), prescribing that no alleged error in a point not contained in the statement of points shall be thereafter raised, and, in the absence of the prescribed cure of such defects by brief for the state specifying the instructions to which the points apply and discussing them on their merits, presented no question for review. [Ed. Note.-For other cases. see Criminal Law, Cent. Dig. §§ 2965-2970, 3205; Dec. Dig. § 1130.*] Appeal from Circuit Court, Dubois County; Bomar Traylor, Special Judge. John Anderson was convicted of assault and battery with intent to kill, and he appeals. Affirmed. Richard M. Milburn, of Jasper, and Robert W. Armstrong, of Huntingburg, for appellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, of Indianapolis, for the State. Under The case of West v. Fulling, 36 Ind. App. 617, 76 N. E. 325, seems to hold that the right to retail carries with it in all cases title to the property transferred, and that a contract retaining title in the seller is void as against creditors and trustee in bankruptcy, citing the bankruptcy act, as follows: "That the trustee of a bankrupt shall take MORRIS, J. Appellant was convicted on title to all property which, prior to the fil- a charge of assault and battery with intent ing of the petition, he could, by any means, to kill. His motion for a new trial was have transferred, or which might have been overruled, and this ruling is the only error levied upon and sold under judicial process assigned. against him." The stock of goods could not have been transferred in bulk, neither could it be levied upon by execution and sold to satisfy creditors other than the original vendor; and, in so far as that case holds that the same may be taken by the trustees in bankruptcy, the same is overruled. It appears from the averments of the com-der the heading "Points and Authorities," plaint that at least $200 worth of goods, appellant's brief contains statements of eight originally purchased under the conditional abstract legal propositions. contract, are still on hand. As to this property received from the original vendor, appellant herein is clearly entitled to recover; and the complaint stated a good cause of action as to that part of the property. As to the after-acquired property, we express no opinion. The court erred in sustaining a demurrer to the complaint. Judgment reversed. MORRIS, J., did not participate. ANDERSON v. STATE. (No. 22,291.) In appellant's brief, neither the motion nor the substance thereof is set out. the heading "Statement of the Record" appears only this: "The motion for a trial is set out in full on pages 318 and 319, and the ruling of the court thereon, and exceptions by defendant on page 320." new Un In no one of such propositions is found any reference to any instruction given by the court to the jury, and consequently no information is given as to which, if any, of the instructions given such legal propositions are intended to apply. In the brief, under the heading of "Argument," appellant sets out instructions Nos. 7 and 5 given by the court, and asserts error in the giving of each of them, and adduces reasons in support thereof. It is contended by the Attorney General that no question is here presented for review, because (1) of appellant's failure, in his statement of points and authorities, to specifically refer to any particular ruling or action of the trial court alleged to be erroneous; and further (2) because appellant's brief, in its statement of the record, under clause 5, rule 22 of this court, fails to disclose any portion of the record relating to instructions given so as to present the error set out neither the motion for a new trial nor the substance thereof, and under the heading or exception on which he relied. The At"Statement of the Record" stated that the mo- torney General in his brief has refrained tion and the rulings and exceptions thereon from any discussion of any matter appearing were set out in full at certain pages of the record, and under the heading "Points and Au-in appellant's brief, except as above stated. thorities" contained statements of abstract leThe precise question here involved was gal propositions, in none of which was there determined in Michael v. State, 99 N. E. 788. --- For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes The rules of this court are binding on litigants. The Attorney General has done nothing here to cure the defects in appellant's brief; and it must be held that no question is presented for review. Clause 5, rule 22 of this court (55 N. E. vi); Michael v. State, supra; Leach v. State, 97 N. E. 792; Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033; Teeple v. State ex rel. Bower, 171 Ind. 268, 86 N. E. 49; Bader V. State, 94 N. E. 1009. No error appearing, the judgment of the trial court is affirmed. ing effect shall be made to depend upon any authority. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 115, 117-122; Dec. Dig. § 66.*] 6. STATUTES (§ 113*)—VALIDITY-TITLE-SUBJECT OF ACT. Act March 6, 1909 (Laws 1909, c. 128), authorizing the Indiana Railroad Commission to determine the efficiency of locomotive headlights in use, and to require the installation of headlights, entitled, "An act giving the Railroad Commission of Indiana specific power to investigate and determine as to the efficiency of headlights now in use on locomotives in Indiana, and to prescribe efficient and practical headlights, and to make and enforce orders with reference thereto," was not objectionable on the ground that the subject of the act was not contained in the title. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 141-144; Dec. Dig. § 113.*] 7. STATUTES (§ 109*)-ENACTMENT-TITLE. VANDALIA R. CO. v. RAILROAD COMMISSION OF INDIANA. (No. 22,272.) (Supreme Court of Indiana. March 13, 1913.) 1. CONSTITUTIONAL LAW (§ 27*) GOVERNMENTAL POWERS-STATE AND FEDERAL GOVAll powers not delegated to the federally deducible from the language employed; the government by the Constitution are reserved ERNMENT. to the states. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 31; Dec. Dig. § 27.*] 2. COMMERCE (§ 13*)-INTRASTATE COMMERCE -REGULATION BY STATES. The states have full power over commerce which is not interstate, and may pass such laws regulating the commerce within the states as they may deem expedient or politic. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 7; Dec. Dig. § 13.*] 3. COMMERCE (§ 10*)—INTERSTATE COMMERCE -POWER OF STATE-HEADLIGHTS-REGULATION. Congress not having passed any law regulating size, power, and character of headlights to be carried on engines used in interstate commerce, the Legislature of Indiana had power to pass Act March 6, 1909 (Laws 1909, c. 128), authorizing the Indiana Railroad Commission to determine the efficiency of headlights in use on locomotives, and to prescribe and require the installation of efficient and practical headlights, though the same might affect in terstate commerce. [Ed. Note.-For other cases, see Commerce, Cent. Dig. 8; Dec. Dig. § 10.*] 4. CONSTITUTIONAL LAW (§ 62*) — LEGISLATIVE POWER-DELEGATION-STATUTES. Act March 6, 1909 (Laws 1909, c. 128), authorizing the Indiana Railroad Commission to investigate the efficiency of locomotive headlights, and to require the installation of effective headlights, was not objectionable as a delegation of legislative power to the Railroad Commission in violation of state Const. art. 4, § 1, vesting the legislative power of the state in the General Assembly. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. § 62.*] 5. CONSTITUTIONAL LAW (§ 66*)-CONDITIONAL LEGISLATION-ORDER OF RAILROAD COMMISSION. It is not essential to a valid title to a statute that the subject be expressed in exact terms, but it is sufficient if the subject is fair test being whether the body of the legislation embraces more than one general subject, and such matters as are calculated to reach the single object intended, and whether that subject is disclosed by the title. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 136-139; Dec. Dig. § 109.*] 8. CONSTITUTIONAL LAW (§ 318*)—RAILROADS (§ 229*)-DUE PROCESS OF LAW-RAILROAD REGULATIONS. Since Railroad Commission Act 1905 (Burns' Ann. St. 1908, §§ 5533, 5536, 5541, 5548, 5550) provides that railroad companies, dissatisfied with an order of the Commission, may have the order reviewed by appropriate proceedings in a court of competent jurisdiction, Act March 6, 1909 (Laws 1909, c. 128), supplementary to such act, empowering the Commission to investigate locomotive headlights and to require the installation of efficient headlights, was not unconstitutional as depriving railroads within the state of their property without due process of law. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 949; Dec. Dig. § 318: Railroads, Cent. Dig. § 743; Dec. Dig. $ 229.*] 9. CONSTITUTIONAL LAW (§ 297*) POLICE POWER-DUE PROCESS OF LAW-LOCOMOTIVE HEADLIGHTS. Act March 6, 1909 (Laws 1909, c. 128), authorizing the Indiana Railroad Commission to require the installation of efficient headlights on locomotives, was a proper exercise of police power of the state, and was not therefore unconstitutional as depriving the railroad companies of their property without due process of law, because such new installation would entail considerable expense to them. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 832-834; Dec. Dig. § 297.*] 10. RAILROADS (§ 229*)-REGULATION--HEADLIGHTS - RAILROAD COMMISSION - ORDER CERTAINTY. An order of the Indiana Railroad CommisAct March 6, 1909 (Laws 1909, c. 128), sion required all railroad companies to equip authorizing the Indiana Railroad Commission locomotives, except those used in switching, to determine the efficiency of locomotive head- with headlights of not less than 1,500 candle lights in use, and to make and enforce orders power. Complainant in a suit to enjoin enfor the installation of effective headlights, was forcement of the order alleged that the equipnot invalid as making the taking effect of the ment with the headlight prescribed would cost law depend on the order of the Railroad Com- more than $100 per engine. Held that, since mission in violation of state Const. art. 1, § 25, the words "candle power" have a usual and forbidding the passage of any law whose tak-ordinary meaning which could be ascertained by due inquiry, and complainant's allegation Appellant contends: First, that the act of having indicated that it was fully advised as March 6, 1909, authorizing the Indiana Railto what was required, the order was not fatal-road Commission to investigate and deterly defective for uncertainty or indefiniteness. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*] Appeal from Superior Court, Marion County; Vinson Carter, Judge. Action by the Vandalia Railroad Company against the Railroad Commission of Indiana. Judgment for defendant, and plaintiff appeals. Affirmed. Samuel O. Pickens, Owen Pickens, and John G. Williams, all of Indianapolis, for appellant. Frank S. Roby, Ward H. Watson, Elias D. Salsbury, and Sol. H. Esarey, all of Indianapolis, for appellee. ERWIN, J. This was an action on the part of appellant against the appellee, commenced in the Marion superior court February 4, 1910, to set aside and to enjoin the enforcement and the collection of penalties for failure to comply with an order of the Railroad Commission of Indiana, made in pursuance of the act of the General Assembly of the state of Indiana, approved March 6, 1909 (Laws 1909, c. 128), requiring appellant and other railroad companies operating lines of railroad in Indiana to equip all their locomotive engines, except engines used in switching, with headlights of not less than 1,500 candle power, and naming a day that such appliances should be installed. The complaint was in two paragraphs, and alleging, among other averments of the complaint, that the act of the General Assembly, which authorizes the Railroad Commission to make and enforce the order to install and maintain a headlight on locomotives of railroad trains, running over lines in the state of Indiana, contravenes the Constitution of the United States and the state of Indiana, and is therefore void. The defendant (appellee), the Railroad Commission, answered this complaint in one paragraph in which they recite the correspondence between the Railroad Commission and appellant in relation to the order of which appellant complained. The demurrer to the amended answer to the first and second paragraphs of amended complaint was by the court overruled; and, appellant refusing to plead further, judgment was rendered against the plaintiff (appellant) that they take nothing by their suit, and that the defendant recover of the plaintiff its costs, from which finding and judgment the plaintiff appealed to this court. The assignment of erro:s presents the following questions: First, the overruling of appellant's demurrer to the amended answer to the first paragraph of the second amended complaint; second, the overruling of appellant's demurrer to the amended answer to the second paragraph of the second amended complaint. mine as to the efficiency of headlights now The Constitution of the United States confers power on Congress "to regulate commerce with foreign nations and among the several states and with the Indian tribes." Article 1, § 8, Constitution of United States. Under this provision Congress derives its power to regulate interstate commerce. [1, 2] All powers not delegated to the federal government by the Constitution are reserved to the states, and the states have full power over commerce which does not assume the character of interstate commerce, and may pass such laws regulating commerce within the states as they may deem expedient or politic. Luken v. Lake Shore, etc., R. Co., 248 Ill. 377, 94 N. E. 175, 140 Am. St. Rep. 225, 21 Ann. Cas. 82; People v. Chicago, etc., R. Co., 223 Ill. 581, 79 N. E. 144, 7 Ann. Cas. 1; People v. Erie R. Co., 198 N. Y. 369, 91 N. E. 849, 29 L. R. A. (N. S.) 240, 139 Am. St. Rep. 828, 19 Ann. Cas. 811; Detroit, etc., R. Co. v. State, 82 Ohio St. 60, 91 N. E. 869, 137 Am. St. Rep. 758; Missouri Pac. R. Co. v. Kansas, 216 U. S. 262, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |