4 Ind. App. 319 | Ind. Ct. App. | 1892
The appellee, William H. Brown, sued the appellants, Arthur E. Harlan and Cyrenus F. Heritage. There were four paragraphs of complaint, and a demurrer addressed to them separately was overruled. The appellants answered by general denial. A trial by jury resulted in a verdict for the appellee for seventy-two dollars. A motion for a new trial made by the appellants having been overruled, judgment was rendered on the verdict.
The second paragraph alleged, in substance, that the appellee on the- day of August, 1890, was the owner and in possession of a certain promissory note of the value of eighty dollars, executed by one Patterson Blake as principal and by one Albert Wilson as surety for said Blake, and by them delivered to appellee on the 26th of February, 1889, due six months after date; that said note was so given for one hundred and fifty dollars, with interest at the rate of eight per cent, per annum, but that payments were made thereon from time to time, for which credits had been entered on the note, reducing its value to eighty dollars; that on the night of said — - day of August, 1890, the appellee was in the town of Alexandria, Madison county, Indiana, in a state of stupid intoxication; that while he was there in such condition one George Brown procured and took said note from him, without his knowledge or consent; that at and during the time said George Brown so obtain’ed said note from the appellee, he was unconscious of the fact; that he did not then realize or understand his surroundings, what he was doing or what was done to him or in his presence; that he had no intention at that time or thereafter of parting with said note; that he did not receive any consideration or promise of any consideration from said George Brown or from any one else, “ of which he has any remembrance,” for said note; that said note was so taken from him by said George Brown wrongfully and tortiously; that on the following day after said note was so procured, said George Brown sold it and caused it to be sold to the appellants; that soon thereafter, to wit, on the — day of August, 1890, the appellants caused said Patterson Blake and Albert Wilson to give them a new note in place of and for the note which they had so obtained from said George Brown and from his agents; that upon said
The fourth paragraph of complaint alleged, in substance, that the appellee “ is by occupation a farmer, and for eight-teen years last past has resided and now resides about five miles from the town of Alexandria, in said county and State; that he is yet and for many years past has been addicted frequently to the eacessive use of intoxicating liquors; that now and then, at intervals often of several months, he indulges such appetite, and becomes thereby mentally stupid, in which condition he usually remains for several days, and sometimes for weeks, and during such times he is incompetent to transact business, or to intelligently comprehend the ordinary affairs of life; that said defendants are bankers, who do a banking business and loaning business in said town; that they and each of them are, and for several years last past have been, acquainted with the plaintiff; that during all said time they and each of them have known and been fully aware of plaintiff’s said weakness, and of his said habit of becoming so intoxicated;” that on the--day of August, 1890, the appellee was the owner and in the possession of a certain promissory note, dated February 26th, 1889, calling for one hundred and fifty dollars and interest from date, at the rate of eight per cent, per annum, signed by one Albert Wilson, as principal, and by one Patterson Blake, as
The second paragraph seems to be a good complaint for the conversion of the note described therein. It shows that the note was taken from the appellee wrongfully, without his knowledge or consent; therefore he did not part with Bis title to the note. The person who so obtained the note could not transfer title, having none himself. The appellants, having received the note from one who had no title or power to sell or assign it, and having exercised dominion over it by delivering it to the makers for a new note payable to the appellants, thereby converted it to their own use, and became liable to the appellee for its value.
The question whether or not one who purchases personal property from another not the owner obtains a good title will in many cases be a question whether there was a contract between the owner and the intermediate person. Cundy v. Lindsay, L. R. 3 App. Cas. 459.
A purchase from one who has no power to sell, when the purchaser takes and retains possession, claiming it under the sale, is a conversion. Hyde v. Noble, 13 N. H. 494.
When one takes an assignment and the possession of per
We have been somewhat at a loss to determine upon what theory the fourth paragraph was constructed. We have concluded that it was perhaps intended as a complaint to recover the value of the note transferred by the appellee to the appellants upon the ground that he sold it to them when he was incapacitated by intoxication, he having repudiated the contract, and having offered to restore the consideration paid him, after his restoration to sobriety and reason, they in the meantime having rendered themselves incapable of restoring the.note itself to him.
His drunkenness'did not render the transaction void, but rendered it voidable. MocGuire v. Callahan, 19 Ind. 128; Joest v. Williams, 42 Ind. 565; Louchheim v. Gill, 17 Ind. 139 ; McClain v. Davis, 77 Ind. 419; Bursinger v. Bank of Watertown, 67 Wis. 75.
The only objection urged against this paragraph is the failure to expressly state what was the value of the note transferred by the appellee to the appellants.
A promissory note is a promise to pay a certain number of dollars. It is prima facie worth that many dollars, its face value. In an action for the conversion of such a chose in action, if the maker was insolvent or there was a legal defence to the note, or there were any facts rebutting the. presumption that it was worth its face value, such matters might be shown in defence to reduce the damages. Latham v. Brown, 16 Iowa, 118; American Ex. Co. v. Parsons, 44 Ill. 312; Menkens v. Menkens, 23 Mo. 252.
The fourth paragraph stated the date of the note, the prin
What we have said disposes of the objection made by appellants in discussing the evidence, that there was no evidence of the value of the notes, which, upon the trial, were treated as being of their face value.
The appellants contend that the jury evidently intended to find for the appellee on the one note on which a balance of eighty dollars was alleged to be due, mentioned in the first and second paragraphs of the complaint, and not also on the note for one hundred and fifty dollars mentioned in the third and fourth paragraphs, and that the evidence shows that the amount of the note mentioned in the first and second paragraphs was sixty-three dollars and not seventy-two dollars; but they have made no reference to any particular portion of the evidence, filling one hundred and thirty typewritten pages.
The instructions given to the jury by the court were not signed by the judge, and are not shown to have been filed ; and those requested by the appellants are not shown to have been filed. Neither the instructions given by the court nor those requested by the appellants are preserved by bill of exceptions. Supreme Lodge, etc., v. Johnson, 78 Ind. 110; City of Indianapolis v. Murphy, 91 Ind. 382; Fort Wayne, etc., R. W. Co. v. Byerle, 110 Ind. 100; Olds v. Deckman, 98 Ind. 162. Under these authorities and many others which might be cited, we can not consider the objections urged to instructions given, or examine those refused.
We find no available error in the record.
The judgment is affirmed.