55 Ind. App. 663 | Ind. Ct. App. | 1914
Appellee recovered judgment against appellant for $446.67, damages, for the alleged conversion of the proceeds of a certain note and mortgage. The case was tried on the second paragraph of the complaint to which a demurrer for alleged insufficiency of facts to state a cause nf action, was overruled. The errors assigned and relied on for reversal are the overruling of the demurrer to the second paragraph of complaint, overruling the motion to modify the judgment and the motion for a new trial.
The second paragraph of the complaint in substance, charges that on February 26, 1910, Edward Y. Ransford, the husband of appellee, was indebted to the appellant bank in a large sum; that on that date appellee was indebted to Elizabeth Alter in the sum of $1,500, which was “secured by a mortgage upon a certain piece of real estate in the city of Rensselaer, Indiana”; that on said date appellee was the owner of a certain note and mortgage for $400, dated February 10, 1910, which mortgage was upon certain real estate therein described, signed by Alfred Loman, payable to appellee, and due August 11, 1912; that on February 26, 1910, appellee sold and assigned the note and mortgage to said bank “in consideration of the sum of $400 and the accumulated in
use (as in this instance, the payment of appellee’s debt), and in disregard of such directions, applies the same to his own use, or the use of a third person, such use is wrongful and amounts to the conversion of the money so misapplied. Terrell v. Butterfield (1883), 92 Ind. 1, 10; Kidder v. Biddle (1895), 13 Ind. App. 653, 658, 42 N.E. 293; Bunger v. Roddy (1880), 70 Ind. 26, 28; Armacost v. Lindley (1888), 116 Ind. 295, 296, 19 N. E. 138; Fort v. Wells (1896), 14 Ind. App. 531, 533, 43 N. E. 155, 56 Am. St. 316; Shearer v. Evans (1883), 89 Ind. 400, 404; Stewart v. Long (1896), 16 Ind. App. 164, 166, 44 N. E. 63. Where the facts alleged show an actual conversion of the money or prop
Judgment affirmed.
Note.—Reported in 104 N. E. 604. As to conversion sufficient to maintain trover, see 24 Am. St. 795. See, also, under (1) 2 Cyc. 1014; (2) 38 Cyc. 2025; (3) 38 Cyc. 2071; (4) 38 Cyc. 2032, 2071; (5) 8 Cyc. 138; (6) 3 Cyc. 388; (7) 38 Cyc. 2086; (8) 3 Cyc. 443.