2 Ind. App. 107 | Ind. Ct. App. | 1891
This was an action by the appellees against the appellants to recover the possession of certain merchandise which, on the 31st of July, 1888, was sold and delivered by the appellees under the firm name of Howell Gano & Co., of Cincinnati, Ohio, to William G. Betts and Isaac W. Craig, under the name and style of Betts & Craig, and doing business as merchants at Darlington, in this State.
The complaint was answered by a general denial by all who were made defendants, except Walter Hulett and Robert A. Craig, who answered, disclaiming any interest in the property.
The cause was tried by the court and a special finding of facts made at the request of the appellants. Upon the facts
The conclusions of law were excepted to by the appellants, who also moved the court for a restatement of its conclusions of law, which motion was overruled and exception taken. Appellants then moved the court for a new trial, which was overruled and excepted to.
The appellants have jointly and severally assigned tor error:
1. That the court erred in its conclusions of law upon the facts found.
2. The court erred in overruling the motion of appellants to restate its conclusions of law.
3. The court erred in overruling the appellants’ motion for a new trial.
We do not think the court erred in its conclusions of law upon the facts found. Every fact necessary to a recovery by the appellees was found by the court.
It is shown by the facts found, that the merchandise in controversy was purchased by the firm of Betts & Craig from the appellees, with the fraudulent intention of not paying therefor; that they received the same on the 31st of July, 1888; that within six days thereafter they executed to the appellants and to said Walter Hulett and Eobert A. Craig, notes payable in twenty days, at the Citizens’ National Bank of Crawfordsville, as follows: $308 to James D. Hill, $408 to Milton S. Hopper, $1,500 to Francis M. Betts, father of William C. Betts, $265 to Charles C. Young,
The appellants contend that the finding as to notice to them of the fraudulent intent of Betts and Craig is against the appellees.
In this they are in error. Notice is either actual or constructive, but there is no difference between them in its consequences. Actual notice consists in express information of a fact, and brings home knowledge directly to a party. Whatever is notice enough to excite the attention of a man of ordinary prudence, and calkfor further inquiry, is, in equity, notice of all the facts to the knowledge of which an inquiry suggested by such notice, and prosecuted with due and reasonable diligence, would have led. If a man have actual notice of circumstances sufficient to put a man of ordinary prudence on inquiry, as to a particular point, the knowledge which he might by the exercise of reasonable diligence have obtained, will be imputed to him by a court of equity. Kerr Fraud and Mistake, pp. 235, 236. (
Counsel for the appellants earnestly contend that there must have been a rescission of the contract by the appellees, as between them and Betts and Craig, before this form of action could be maintained, and that inasmuch as the special finding does not show such l’escission, the conclusions of law stated by the court are not sustained by the facts found. The answer to this is that the appellees had no contract except
Where possession of property has been wrongfully obtained by means of a voidable contract, and the vendor has received nothing of value, the bringing of an action to reclaim the property is ordinarily a sufficient disaffirmance of the contract. Thompson v. Peck, 115 Ind. 512. That the purchase of goods, with a design of not paying for them is such a fraud upon the vendor as will make the sale voidable, is well settled. 1 Parsons Con. 569, 570; Curme, Dunn & Co. v. Rauh, 100 Ind. 247; Evansville, etc., R. R. Co. v. Erwin, 84 Ind. 457.
If the second ground of error assigned by the appellants is predicated upon a proper motion, it is disposed of by what we have already said.
The complaint that the court erred in overruling the motion for a new trial is not discussed by counsel for appellants in their brief, and is therefore waived. Engleman v. Arnold, 118 Ind. 81.
Judgment affirmed, with costs.