30 Ind. App. 144 | Ind. Ct. App. | 1902
The complaint of Margaret A. Comer, appellant, against John R. Hayworth, appellee, consisted of two paragraphs. In the first it was alleged that the appellant about April 1, 1894, was the owner and entitled to the possession of a certain draft for $800, issued in payment for her farm, and made payable to William R. Jones, for her use; that Jones assigned the draft to the appellee, who drew the money thereon, and, without her knowledge or consent, wrongfully and unlawfully converted the money t'o his own use, to her damage in the sum of, etc., for which she made demand on the appellee before suit, but he refused
It is assigned here that the court erred in overruling the appellant’s demurrer to the third paragraph of answer. In that paragraph, addressed to the entire complaint, it was alleged that in the year 1890 the appellee and the appellant’s husband, William Comer, with W. R. Jones, entered into partnership for the purpose of buying and selling cattle and other live stock, and continued until June, 1892, when Jones retired from the firm, and thereafter the appellee and the appellant’s husband continued in partnership, and continued to carry on that business until they finally dissolved partnership, the date of dissolution not being stated; that when these persons went into partnership; in 1890, William Comer was the owner of the land mentioned in the complaint, which the appellee then knew; that on December .24, 1891, William Comer, his wife, the appellant, joining him, — conveyed the land to their daughter and her husband (named), without consideration," and these grantees on the same day, without consideration, conveyed the land to the appellant; that appellee was never informed and did not know of this transaction until long after it had taken place, and was not informed and did not know that the appellant owned or claimed to own the land; that the appellee, while admitting that he received the sum of $800 of William R. Jones, substantially as alleged in the complaint, says that the same was received by him under
The case presented by this answer .in connection with the complaint is, briefly, that Hayworth received from Jones $800, of which Mrs. Comer was the owner; it being the proceeds of the sale of her land, held as such by Jones in money, or in the form of a draft made payable to Jones. The money so received by appellee was paid in by order of William Comer, — to whom addressed is not stated, — to be used as partnership money of a firm composed of Hayworth and William Comer. When Hayworth received it from Jones it was credited to William Comer on the partnership books, and was used by the firm in the partnership business; Hayworth not being informed when he received the money, and gave his partner credit therefor, that it was Mrs. Comer’s money, or that she owned or claimed the land from the sale of which it was derived.
It is alleged that appellee did not know that the money belonged to the appellant, or that she owned" the land from the sale of which the money was derived; but it is not alleged that he did not know of the sale of the land, or that he did not know that the money was derived therefrom, or that he had been informed that the money belonged to his partner, or that he believed it to belong to his partner, or that he made any inquiries or investigation concerning the ownership of the draft or the money. The draft or the money was in the possession of Jones, who held it as tho property of appellant. It passed from the possession of Jones, not to the possession of appellant’s husband, but di-N rect'ly to the appellee. It never was in the possession of appellee’s partner, except as it' may be said to have been in his possession as a partner after it had been appropriated as partnership money. The money belonging to the appellant was thus appropriated without her knowledge or consent.
Where one person appropriates the money or property of another, without the knowledge or consent of the owner, the appropriation is wrongful, and an action may be maintained for its recovery without previous demand. Armacost v. Lindley, 116 Ind. 295, 296.
Where a husband takes possession of the corpus or principal of the separate property or money of his wife, he is presumed, under our law, to hold it for her use and benefit, until this presumption is overcome by proof of her intent to make a gift of the property to him. The burden is upon him to show that his appropriation of the property was in accordance with her direction, or that she gave it to him. Where she never'acquired actual dominion over such money or possession thereof, he having collected and appropriated it to his own use, the fact that he collected and received it with her consent would not raise a presunption that she intended to give it to him. Denny v. Denny, 123 Ind. 240.
If the husband took the wife’s property with her consent, unless the facts and circumstances show an agreement or an intention on her part that he shall have it as a gift, he will be presumed to have taken it as her agent or trustee. In' such case she may declare against him, not for conversion, but for money had and received to her use. Armacost v. Lindley, supra; Parrett v. Palmer, 8 Ind. App. 356, 52 Am. St. 479.
If the appellant had loaned the money to her husband alone, the credit therefor being given by her knowingly and voluntarily to him individually, the firm or the appellee would not have been liable for the money, though it were put into the poartnershipo by the husband and used for the purposes of the firm. In such case her contract would be unconnected with the application or use of the money by the borrower, and she would be the creditor of the person with whom she contracted, without regard to the partnership.
But' the case before us can not properly be characterized as one involving such a breach of trust on the part of appellee’s partner. lie did not obtain possession of his wife’s money and invest it in fhe partnership business. The money never-was in the individual possession of appellant’s
Judgment reversed.