127 Ind. 359 | Ind. | 1891
The only error assigned in this case is the ruling of the court in sustaining the demurrers of the appellees to the complaint, which, omitting formal matters, is substantially as follows :
That the appellant is administrator of the estate of Mary C. Eyler; that in April, 1886, the appellee, William P. Gregg, was the owner of and. conducting a general business for the sale of agricultural implements and coal, in the city of Crawfordsville; that the premises upon which the busi
This complaint is somewhat peculiar, and it is not easy to determine upon precisely what theory the pleader desired to predicate his-cause of action. One portion apparently proceeds upon the assumption that the action of William P.
Without entering into an extended discussion of the objection to this theory pointed out in the brief of appellees, it is sufficient to say that, eliminating from the pleading the allegations charging fraud and fraudulent intent, and looking at the facts themselves, it does not appear that either of the appellees did a single thing that the law prohibited them from doing, and, under such circumstances, it has been well said that “ Fraud can not be predicated upon acts which the party charged has a right by law to do, nor upon the non-performance of acts which by law he is not bound to do, whatever may be his motive, design or purpose', either in doing or not doing the acts complained of.” Biddle, J., in Franklin Ins. Co. v. Humphrey, 65 Ind. 549 (560).
Nor does it appear that the mortgaged property was of less value in the hands of Marshall, or less available as a security, than it would have been if Gregg had continuéd to own itt
The cases of Duke v. Strickland, 43 Ind. 494, and Shearer v. Evans, 89 Ind. 400, do not sustain the position of the appellant in this case, for in each of these cases the mortgaged property was so mixed and confused with that of the plaintiff as to be incapable of identification, and then shipped and sold so as to be entirely beyond the reach of the plaintiffs.
The other theory, and from the prayer for relief, the one we are led to believe the pleader chiefly relied upon, proceeds upon the ground that the delay of the appellant in bringing suit for a long period of time after his cause of action accrued, upon the representation of William P. Gregg that he was about to sell out the business, and his promise that he would, when he made sale, pay to the appellant the full amount of. his claim, coupled with the fact that when he
Taking into consideration the agreement between the appellant and William P. Gregg, the insolvency of Gregg, the condition and nature of the mortgaged property, we think it clear that the appellant is entitled in equity to treat Orpheus M. Gregg as a trustee of this fund for the benefit of himself and the other creditors, if any, having liens on the property.
The receipt of the money by Orpheus M. Gregg was a sufficient consideration for his agreement to pay the same to the lienholders, and the appellant being a lienholder is entitled to sue upon that promise.
It is not, as claimed by the appellees, necessary that the complaint should show an acceptance by the appellant of this promise, other than such as is implied by the bringing of this suit (Carnahan v. Tousey, 93 Ind. 561); but if it was necessary an acceptance and demand may be inferred from the allegation that Orpheus M. Gregg refused to pay the appellant, and appropriated the money to his own use.
It is contended that the complaint is bad because it does not show that all the property covered by the mortgage had been sold to Marshall; it is sufficient to say that this fact may in the future become important in ascertaining the amount of a recovery, but if some of the property was sold, and the promise and agreement made, the appellant is entitled to a recovery.
The complaint shows that all of the appellees are proper, if not necessary, parties to the action, in order that there may be a complete determination and settlement of the questions involved.
The judgment is reversed, with costs, and the cause re