53 Ind. App. 74 | Ind. Ct. App. | 1912
— This is an action for damages, brought by appellees against appellant and one Isaac Alonzo Barkhurst for alleged fraud in the exchange of certain real estate. The complaint is in two paragraphs. A separate demurrer for want of facts was filed to each paragraph and overruled. Issues were joined by a general denial. Upon motion the cause was venued from the Tippecanoe Superior Court to the Clinton Circuit Court where the case was tried by the court. A special finding of facts was duly made and conclusions of law stated thereon in favor of appellees for $2,707; that appellee Elizabeth Jester had an inchoate interest in the Tippecanoe County real estate; also that the law was with said Barkhurst and that he have judgment against appellees for his costs. A motion for new trial was overruled; the court rendered judgment against appellant in favor of appellees and this appeal was prayed and granted.
The errors relied upon for reversal are: (1) The overruling of the demurrers to each paragraph of the complaint; (2) neither paragraph of the complaint states facts sufficient to constitute a cause of action against appellant; (3) error of the court in its conclusions of law; (4) the overruling of appellant’s motion for new trial. The complaint is ex
The court found the facts substantially as alleged in the complaint and the details thereof need not be stated here, but among them are the following: that the business of appellee, William P. Jester, was and for many years had been that of a carpenter and builder; that appellant is a trader and money lender, and a dealer in real estate and personal property; that appellee’s 117 acres of real estate in Tippecanoe County were of the value of $65 per acre; that appellee on November 9,1906, owned personal property
The court then finds the facts in much detail to the effect that the transaction relating to the Georgia land was a sham inspired and directed by appellant; that the other persons who appear therein were his agents and tools and all the dealings and representations were fraudulently made to avoid the effect of the fraud in the first deal and to deprive appellees of all their property; that as soon as said Barkhurst obtained the deed of appellees for said Starke County land he immediately conveyed the same to appellant; that said William P. Jester relied upon appellant, believed his statements in regard to said lands and made the trade upon his representations and advice; that appellant knew all the facts, that his statements and those made by his agents and coconspirators were false and fradulent and were made for the purpose of cheating and defrauding appellees out of their property.
The questions relating to the sufficiency of the complaint and the conclusions of law may properly be considered together. Two principal propositions are relied upon by appellant: (1) The complaint states no cause of action in favor of appellee, Elizabeth Jester, and is therefore insufficient, as to both appellees suing jointly; (2) the complaint proceeds upon the theory of fraud and the facts alleged are insufficient to show actionable fraud against appellant.
The appellant has pointed out no available error. The case presents many facts which show a flagrant disregard of the principles of fair and honest dealing and a wilful and persistent design to defraud. The apparent credulity and helplessness of appellees while under the influence of appellant instead of excusing his conduct, under all the facts of the case, only add to the enormity of such conduct, which should be discouraged by all available means. The judgment is therefore affirmed with ten per cent damages.
Note. — Reported in 100 N. E. 15. See, also, under (1) 2 Cyc. 718; (2) 14 Cyc. 952, 956; (3) 14 Cyc. 924; (4) 31 Cyc. 103; (5)