Brown v. Universal C.I.T. Credit Corp.

SCHNACKENBERG, Circuit Judge

(concurring).

I concur in the result reached, but I feel it necessary to state my view that it is the right of the district court, on remand, to try such issues as may be raised by defendant’s answer without being influenced by this court’s inferences, based entirely on the complaint, or the rule of the Court of Appeals of another circuit.

The argument in plaintiff’s brief, upon which this court’s opinion is based, avers that Schulz gave to the truck seller as his address: Box 614, New Buffalo, Michigan. Whether this is a box in a post office or a rural mail box does not appear. Whether it marked a residence, a place of business or a garage, the record does not reveal. We are not entitled to infer from this vague reference to a Michigan address that this was the place to which the chattel “would be taken immediately”. Further there is no showing here as there was in Enterprise Optical Mfg. Co. v. Timmer, 6 Cir., 71 F.2d 295 (1934), relied on by the majority, that the parties to the contract contemplated that the property was to go and remain in a state other than Indiana — the place where the contract was made and was to be performed.

Plaintiff’s brief in this court states that the truck was built for long interstate hauling. It contends that the “vendor * * * must have understood that the truck would be returned to New Buffalo, Michigan, when not in use, * "x"”. (Emphasis supplied.) Whether defendant must have understood what seems so clear to plaintiff’s counsel was an inference which the district court is not required to draw.

This case now goes to the district court, which is the trier of the facts, and which should first determine this issue.