181 Ind. 429 | Ind. | 1914
This is, in fact, an action for an accounting for money, brought by appellee against one Cupp as principal defendant, and appellant Lesh as garnishee defendant. Cupp assigned error after the appeal was perfected. The assignment of errors by Lesh is in overruling his motion for a venire de novo, and error in specified conclusions of law on the facts found, and Cupp assigns error in sustaining a demurrer to his fifth paragraph of answer, and as to specified conclusions of law, and in overruling his motion for a venire de novo. The evidence is not in the record. The issues are presented by a complaint in two paragraphs, accompanied by affidavits in attachment and garnishment against several persons including appellant Lesh, numerous answers by Cupp, and answers to the affidavit in attachment by the garnishee defendants, including appellant Lesh. Demurrers were sustained to all the paragraphs of the answer of Cupp, but he assigns error here as to the ruling on the fifth paragraph only.
The complaint counts upon a conversion of money, growing out of a contract between appellee and Cupp in carrying on a business. The affidavit in attachment states as the cause of action “an action in accounting and conversion herein for money due him from defendant, taken and used by defendant out of the business of plaintiff, and for profits thereon, and for which the defendant fails and refused to and neglected to reimburse and account” to him. The second, third and fifth statutory causes for attachment are alleged. The affidavit in garnishment alleges that the cause of action “is * * * upon oral agreement * * * and account due * * * for money in the hands of the defendant which said defendant has converted to his own use. ’ ’ The sixth conclusion of law excepted to by both Cupp and Lesh is, that Lesh was not indebted to Cupp, and that the note in the possession of Lesh, which is the subject of garnishment, was at all times the property of Cupp, and the findings support this conclusion. Neither Cupp nor Lesh has any ground for complaint of this conclusion under the findings.
The court sustained a demurrer to appellant Cupp’s fifth paragraph of answer. It purports to be an answer to so much of appellee’s complaint as seeks to charge Cupp with profits accruing from the business in which answer it is alleged that they were partners covering some period of time in several allied branches of business, and that certain profits of the business due him were retained by appellee, and he asks an accounting. Doubtless the matters alleged, in so far as they were involved in the business conducted by the parties, could have been shown under the general denial, which was pleaded, as he could show any facts in denial which plaintiff would be required to prove, or which would reduce the damages, or show that he was not liable. Jeffersonville Water Supply Co. v. Riter
The judgment is reversed, with instructions to the court below to sustain the motions for a venire de novo of Cupp and Lesh, and to overrule the demurrer to the fifth paragraph of answer of Cupp.
Note — Reported in 104 N. E. 642. As to conversion sufficient to sustain the action of trover, see 24 Am. St. 795.