Action by appellee, Boeckeler Lumber Company, hereinafter mentioned as "appellee," against appellee Paxton Lumber Company, seeking to recover upon an account for a carload of lumber in the sum of $875.90. The Paxton Lumber Company filed its verified petition of interpleader alleging that it had bought the carload of lumber in question from Van Cleave, Powe Lumber Company who had assigned the account to appellant which was making demand upon the Paxton Lumber Company, and claimed to be the owners of the said account. The Paxton Lumber Company offered to pay into court the amount due. The court sustained the petition and the appellant was substituted as a party defendant, and filed a cross-complaint alleging that the carload of lumber in question had been sold by the Van Cleave, Powe Lumber Company to the Paxton Lumber Company under a certain written contract, and that the carload of lumber was delivered to the Paxton Lumber Company, and the account assigned to appellant.
Appellee claims that the carload of lumber was never delivered to the Van Cleave, Powe Lumber Company but *Page 96 appellant claims that appellee had given the Van Cleave, Powe Lumber Company the indicia of ownership, and that, relying upon the same, appellant had purchased the account.
The Van Cleave, Powe Lumber Company was insolvent and appellant contends that appellee, by reason of its conduct, was estopped to claim said account and prayed judgment for the amount due. A trial resulted in a finding and judgment in favor of appellee. The error assigned in this court is the court's action in overruling appellant's motion for a new trial.
Presenting the insufficiency of the evidence to sustain the decision of the court, appellant says that the complaint was upon the theory of past due accounts while the evidence 1, 2. proved, if anything, an express contract for the purchase of lumber, and contends that proof of one will not support a complaint for the other. There is no claim, however, that appellant was misled to its prejudice, and therefore such variance is not deemed material. § 418 Burns 1926, § 400 Burns 1914, § 391 R.S. 1881. Further, it does not appear that the attention of the trial court was called to such variance, and therefore this court will not notice it on appeal.Krewson v. Cloud (1873), 45 Ind. 273; U.S. Huey Co. v.Johnston (1905), 164 Ind. 489, 73 N.E. 996; Latshaw v.State, ex rel. (1901), 156 Ind. 194, 59 N.E. 471.
The evidence, which is substantially undisputed, shows that the lumber was ordered by phone from appellee by the Van Cleave Saw Mill Company, of which the Van Cleave, Powe Lumber 3-6. Company was but the sales department, there being no separate organization. Its value exceeded $50; no part of it was delivered; no memorandum or contract in writing was signed by the parties; and nothing was ever paid on the purchase price. Appellee mailed the Van Cleave people an invoice of said shipment, upon *Page 97 the face of which appeared "90% S.D.B/L attached," signifying that a sight draft for ninety per cent. of the full purchase price was demanded upon surrender of the bill of lading, and that appellant's, the vendor's intention was to notify vendee that it (the vendor) would not convey title, or assign the bill of lading, until ninety per cent. of said price was paid. Neither the ninety per cent. nor any part of the purchase price was ever paid. The Van Cleave, Powe Lumber Company and the Van Cleave Saw Mill Company thereupon proceeded to borrow money from appellant, and assigned such copy of invoice as a pledge, or security, for the payment of such amount borrowed.
It is to be observed that the Van Cleave company had only an invoice of the lumber, not the bill of lading, which it could not lawfully obtain without paying the sight draft thereto 7. attached. The bill of lading was used as a means of securing payment, and without such payment and surrender of the bill of lading, the title did not pass to the Van Cleave company. Roaring Fork Potato Growers v. Clemons Produce Co. (1916), 193 Mo. App. 653, 187 S.W. 617; J.L. Price BrokerageCo. v. Chicago, etc., R. Co. (1917), 199 S.W. (K.C.C. of Appeal) 732; Dows v. National Exchange Bank (1875),91 U.S. 618, 23 L.Ed. 214. See, also, Union, etc., Co. v. Yeager (1870), 34 Ind. 1, 11. It follows that, as the Van Cleave company had no title, it could pass none to appellant. Nor is the principle of estoppel available to appellant. There was nothing in the conduct of appellee that should have misled appellant. On the face of the invoice, the assignment of which it accepted as security for the loan, it was notified of an outstanding bill of lading with sight draft attached. It was therefore notified that the Van Cleave company had no title. To constitute an estoppel, there must be *Page 98 a want of knowledge on the part of the one who relies thereon.Greensburgh, etc., Co. v. Sidener (1872), 40 Ind. 424;Smith v. Yost (1919), 72 Ind. App. 628, 125 N.E. 73; GeneralRealty Co. v. Silcox (1925), ___ Ind. App. ___, 146 N.E. 408. The unauthorized delivery of the lumber to the Van Cleave company did not divest appellee of its title thereto. Union, etc., Co. v. Yeager, supra.
As appellant acquired no title to the property by the assignment of the invoice without the bill of lading, it 8. acquired no right to the proceeds of its sale.
We find no reversible error.
Judgment affirmed.