160 Ind. 92 | Ind. | 1903
Suit by appellant against appellees for damages said to have been sustained by him by reason of alleged fraudulent acts of the appellees, whereby he was induced to sell and transfer to them eighty shares of the capital stock of the Eock Oil Company, owned by him. The rulings on demurrers to the special answers of the appellees are assigned for error.
The appeal was taken before the passage of the act of 1901 (Acts 1901, p. 565), and the jurisdiction of the cause is in this court by reason of the amount involved.
The substance of the complaint is that the appellant was the owner of eighty - shares of the capital stock of the Eock Oil Company, a corporation organized under the laws of this State, for the purpose of drilling wells for natural gas, and to lay pipes and furnish such gas for the use of the citizens of the town of Winchester, in Eandolph county, Indiana, and the vicinity of said town; that wells were drilled by said company; that the appellees, or some of them, were officers of the said company, and had special facilities for knowing (the character of the wells so drilled, and the quantity of gas produced by them; that the supply of gas was ample, and the demand large, and for that reason the value of the capital stock was greát; that the appellees, for the purpose of inducing the appellant to sell his stock for less than it was worth, fraudulently made to him false reports concerning the condition and flow of the wells; that they fraudulently obstructed the mains, by inserting a piece of iron at a flange joint thereof; that they falsely declared that they were disappointed in the venture, and intended to sell their stock at a reduced price, and pretended to make such sales; that appellant was ignorant of all these matters, reposed great trust and confidence in the appellees, believed and relied upon their representations, and, -in consequence thereof, sold his stock for much less than it was worth; that the appellees, directly or indirectly, by their friends and relatives, became the owners of said
The answers of the several appellees set up substantially the same matters of defense, and the questions presented by the demurrers to them are, in legal effect, the same. Each answer alleges that before the commencement of the present action the appellant brought a suit in the Eandolph Circuit Court» to rescind his contract for the sale of his said stock and to recover the shares so sold; that the venue of said cause was changed to the "Wayne Circuit Court; that the matters set up in the complaint in that suit, —all of which are specifically pleaded, — and those averred in the complaint in the present action are the same; that the said cause was duly tried by the court, and a special finding made, with conclusions of law thereon; that the finding and judgment in that case were against the appellant ; that all the matters in controversy under the present complaint were tried and determined in the former action, and that the appellant is bound thereby. Some of the answers proceed upon the ground that by his former suit the appellant elected a different and inconsistent remedy. The others are pleas of a former adjudication.
We think it entirely clear that the supposed election of an inconsistent remedy by the appellant in the former action is unimportant, but that the question presented is whethler it appears from the answers that there was a former adjudication of the matters set out in the complaint
The further objection is made that it appears from the special finding in the former case that the appellant had lost his right to recover in that action, on account of his delay-in bringing his suit, and that according to the rule in Dygert v. Dygert, 4 Ind. App. 276, the answers should have been held bad. But the record affirmatively shows that the appellant failed in his first suit because no fraud was shown which entitled him to a rescission of the contract. The special finding that he had the opportunity to ascertain the facts concerning the alleged fraud amounted to nothing, because the court found and adjudged that no fraud was practiced by the appellees. The doctrine stated in Marshall v. Gilman, 52 Minn. 88, 53 N. W. 811, that when the action to rescind a contract is lost by the failure of the plaintiff seasonably to avail himself of it, and by conduct respecting the subject of the action inconsistent
The demurrers to the answers of the appellees were properly overruled, and we find no error in the record. Judgment affirmed.
Monks, J., took no part in the decision of this cause.