17 Ind. App. 389 | Ind. Ct. App. | 1897
This action was brought against appellants as the personal representatives of the estate of Samuel Hamilton, deceased, for the recovery of damages which appellee claims to have sustained by reason of the alleged wrongful conduct of the decedent toward her with reference to certain money which was deposited with said decedent by one George C. Thatcher.
The complaint is, in substance, as follows, to-wit: In January, 1885, George 0. Thatcher deposited with one Samuel Hamilton, who was at the time the owner of a bank and engaged in the banking business, $915.00; that afterwards, in said month, said Thatcher died intestate, unmarried, and leaving the plaintiff as his sole heir at law; that no letters of administration have ever been granted on his said estate; that within a few days after the death of said Thatcher she made diligent search for all books and papers belonging to said estate in all places where said deceased, while in life, was in the habit of keeping the same, or where he was likely so to do, and she made careful examination of dll she found; but that she neither found nor learned anything whatever that the said Thatcher had any money deposited in said bank, or that said Hamilton was in any way indebted to said Thatcher’s estate; that within a short time after the death of said Thatcher, she caused to be published over her own signature in the Shelbyville Democrat, a newspaper of general circulation, printed and published at said city, a notice, asking all persons having claims against said estate to present them for payment, and that all persons knowing themselves to be indebted to said estate should pay the same to her; that in default thereof the same would be placed in the hands of an attorney for collection; that at the time of the death of Thatcher she was wholly ignorant of the fact that
A demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action was overruled and exceptions taken. A trial had, resulting in a verdict and judgment for appellee for $450.00. A. motion for a new trial was made, overruled and exceptions taken. The errors assigned are, first, the overruling appellant’s demurrer to the complaint; second, overruling motion for a new tidal.
When Thatcher deposited his money with Hamilton, the relation of debtor and creditor was at once created. The money became the property of Hamilton. McLain v. Wallace, Rec., 103 Ind. 562; Harrison, Rec., v. Wright, 100 Ind. 515. It was payable to Thatcher at the bank of the latter upon written order, during business hours, unless a different agreement was made as to its payment.
A banker is not bound to seek his depositor as is the ordinary debtor to seek his creditor. He is not bound to pay upon an oral order. McEwen v. Davis, 39 Ind. 109.
Thatcher died without having made any demand for this money. After his death, appellee as his sole legal heir demanded and received of appellants $915.00, the full amount of said deposit. Was not this a complete performance of the contract entered into between
Conversion is the wrongful exercise of dominion over property in denial of the owner’s rights.
If Thatcher had lived without demanding payment to the time when appellee demanded the money, he could not, had payment been refused, have maintained a suit for more than the amount of his deposit with interest thereon from the date of. the refusal. Had he forgotten that he had deposited the money with Hamilton, the obligation of Hamilton would not have been affected by such lapse of memory, because their relations were those of contract and their respective rights and liabilities were fixed by law.
When one does nothing but what the law authorizes him to do, he commits no legal wrong. Habig v. Dodge, 127 Ind. 37.
The money being Hamilton’s he could not become a wrongdoer by using it, for he was only using his own. He could commit no tort by refusing to pay it, for in so doing he would merely violate his contract, for which the'remedy would be a suit on contract, the measure of damages being the amount of the deposit
“There are also, in certain relations, duties imposed by law, a failure to perform which is regarded as a tort, though the relations themselves may be formed by contract covering the same ground.” Cooley on Torts, pages 105, 106.
“At the foundation of every tort must lie some violation of a legal duty, and therefore, some unlawful act or omission.” Cooley.on Torts, p. 104, note and authorities there cited.
Hamilton held the money under a contract entered into without any fraud or fraudulent representations. No trust relations existed between the parties to the contract. None, therefore, could exist between Hamilton and appellee.
Hamilton was simply á debtor from whom a debt ' was payable upon demand.
Appellee as sole heir at law of Thatcher demanded and received the $915.00 by virtue alone of the contract made by Thatcher and Hamilton. She now seeks in tort to enforce a claim dependent upon, and a mere incident of said contract, from which we think' it cannot, in law, be separated so as to maintain an action different in kind from that through which the principal might have been recovered.
In discussing this question, Mr. Pomeroy, in his Remedies and Remedial Rights, section 558, says:
“By far the most important distinction directly connected with this doctrine is that which subsists between causes of action ex contractu and those ex delicto. It is settled by an almost unanimous series of decisions in various states, that if a complaint .or petition in terms alleges a cause of action ex delicto, for fraud, conversion, or any other kind of tort, and the proof establishes a breach of contract express or implied, no*395 recovery can be had, and the action must be dismissed, even though by disregarding the averments of tort, and treating them as surplusage, there might be left remaining the necessary and sufficient allegations, if they stood alone, to show a liability upon the contract.” See Cincinnati, etc., R. R. Co. v. Harris, 61 Ind. 290.
Hamilton contracted to pay Thatcher $915.00 on demand. Appellee claims in this action, as interest and damages, the amount which said sum would have produced. If appellee is entitled to recover on her claim in this action, it must be because of the failure to pay the $915.00 according to the terms of the contract entered into by Hamilton and Thatcher when the deposit was made. The $915.00 could not have been collected in an action in tort, and, therefore, an incident to or a claim arising in consequence of the failure to pay the principal cannot be collected in tort. Bennett v. McIntire, 121 Ind. 231, 6 L. R. A. 736.
Does the complaint state facts sufficient to make it good as a complaint in tort for the fraud of Hamilton?
In charging fraud it is not sufficient to say that a thing was fraudulently done, nor “to heap up epithets.” The facts constituting the fraud must be set out. Curry v. Keyser, 30 Ind. 214; Ham v. Greve, 34 Ind. 18.
These facts are to be considered upon the proposition that the relation of debtor and creditor alone existed between Hamilton and Thatcher, and that therefore the relation of trust does not exist between Hamilton and appellee, as heretofore stated. McLain v. Wallace, Rec., supra; Harrison, Rec., v. Wright, supra.
The facts averred which aspii’e to show fraud are, that soon after the death of Thatcher, Hamilton
The death of Thatcher, as we have heretofore stated, did not change the obligation of Hamilton, but, if it did, and made the money due at once to appellee, his simple failure to pay could not be said to be a fraud. It is not charged that in his conversation with her he made any misrepresentation. There was no deceit in the inquiry as to what she was doing and how she was succeeding in collecting the claims in favor of Thatcher’s estate. It was certainly not a fraud to present to, and ask payment of appellee of a valid claim, nor was it a fraud to accept in payment a check upon a fund on deposit in a bank other than his own. It is true, as stated in the able and ingenious brief,
He might, without submitting himself to the charge of improper motives, assume, under the circumstances, that appellee was in possession of the bank book of the deceased, that she knew of the deposit, and that she elected to draw upon another fund. This act took place seven years after the death of Thatcher — years after the conversion is charged. •
There is no allegation in the complaint that she was deceived by, or relied upon anything that Hamilton did or said. We think the complaint should have contained these averments. Hagee v. Grossman, 31 Ind. 223; Hess v. Young, 59 Ind. 379; Bigelow on Fraud, p. 3.
Hamilton holding the money by virtue of a contract with Thatcher, which did not obligate him to' pay it until demand was made by someone having authority, he could not be charged with fraud for doing what, under the contract, he had a right to do.
It is said in Coppage, Admr., v. Gregg, 127 Ind. 359: “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 cannot 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.’ ”
For the foregoing reasons, and upon these’ authorities, we are of the opinion that the complaint is not good in tort for the fraud of Hamilton.
Had fiduciary relations existed between Hamilton and Thatcher, the obligations of Hamilton would have been radically different and he would then have owed a duty to appellee not imposed by the existing relations. It would then have been his duty to have informed her of all facts known to him concerning business with which he was connected and in which she had a pecuniary interest.
The second assignment of error is the overruling of appellant’s motion for a new trial. This motion embraces forty-six reasons, chiefly relating to instructions given and refused.
Believing as we do that the learned court who presided at the trial below erred in overruling the demurrer to the complaint, and that the errors complained of in the second ^assignment of errors are not likely to occur upon a second trial, we do not deem it necessary to pass upon all of them.
The 43d reason is “The verdict is not sustained by sufficient evidence.”
If the complaint is good in tort, on the theory that Hamilton was guilty of a wrong, then to sustain the verdict the evidence should show that he was guilty of the alleged acts constituting the wrong. If there is no evidence in support of such allegations, the verdict would be contrary to the evidence.
There is no evidence that Hamilton ever had any conversation, nor that he ever in person had any communication with appellee after her brother’s death. There is no evidence that he ever read in any paper the notice which the complaint alleges she caused to
The only evidence showing any business transaction between Hamilton and appellee is to the effect that Thatcher had conveyed to Hamilton by warranty deed a piece of real estate, the title to which had failed; that he had been compelled to expend money in perfecting- his title, and that he had agreed to take from the representative of those who had warranted the title to him what it had cost him to purchase the outstanding title, and that a short time before his death he had sent his agent to appellee and settled with her, as the heir at law of Thatcher, on that basis, and in so doing received a check on a bank in Shelbyville other than his own, mentioned in the complaint.
We have examined the authorities cited in the able brief of counsel for appellee upon this and the other branches of this case; they show there may be circumstances under which the silence of a party may amount to fraud. We do not think that they apply to the facts in this case. It is in evidence that a bank book had been given Thatcher showing his account. There is no evidence that Hamilton knew that appellee did not have it in her possession and therefore did not know of this deposit. Hnder the circumstances his acceptance of a check on the First National Bank of Shelbyville, and his silence as to the deposit in his bank, against which appellee might have checked, was not a fraud.
The judgment is reversed and the cause remanded with instructions to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.