23 Ind. App. 630 | Ind. Ct. App. | 1899
Lead Opinion
Suit for conversion. Verdict and judgment in the court below in favor of appellee for $237.70.
Appellant assigns as error the action of the court in overruling (1) his motion for a new trial; (2) his motion to set aside the judgment. The third specification of error is that the complaint does not state facts sufficient to constitute a cause of action. It is argued that the complaint is defective for the reason that it does not contain an averment of ownership by appellee of the property alleged to have been converted. The sufficiency of the complaint is challenged for the first time in this appeal. If either paragraph is sufficient, the claim must fail. The third paragraph alleges that at certain dates named, appellant, as the agent and employe of the appellee, received of and from him goods, wares, and merchandise in the sum of -$2,200.11 to be sold by defendant for, plaintiff and accounted for to'plaintiff at the sum and price of $1,804.11; that defendant sold and accounted to plaintiff for said merchandise in.the sum of $1,539.16; that a bill of particulars of said goods is filed with the complaint as an exhibit; that the rest of said merchandise, and the proceeds accruing from the sale thereof of the valúe of $300, the defendant converted to his own use, and embezzled, etc.
When a complaint is sufficient to bar another action for the same cause, and it is questioned for the first time in the assignment of errors, it’ will be held good. Waiving the question whether the complaint is insufficient as between bailor and bailee upon demurrer, we are clearly of the opinion that it is sufficient to bar another action for the same cause, and must, therefore, under the rule, hold it to be sufficient. The complaint shows a right of action in appellee
Rehearing
On Petition for Rehearing.
Appellant asks for a rehearing in this cause upon the grounds, (1) that the court erred in holding the third paragraph of the complaint sufficient to withstand a-n attack made for the first time upon appeal; (2) in holding that a complaint in an action for conversion which is sufficient to 'bar another by the same plaintiff for the same cause will be held good if it is questioned for the first time by an assignment of. errors. In support of the petition, counsel- for appellant have industriously collected and cited many cases. The following are cited from our own courts to show that ownership of the plaintiff is an essential material averment in a complaint for conversion. Day v. Watts, 92 Ind. 442; Kehr v. Hall, 117 Ind. 405; Ryan v. Hurley, 119 Ind. 115; Kidder v. Biddle, 13 Ind. App. 653; Noblett v. Dillinger, 23 Ind. 505.
In Day.v. Watts, supra, the complaint, alleged that the defendants with force and arms wrongfully and forcibly took from the plaintiff, and carried away and converted to
The complaint avers no fact showing an interest in the property except that it was taken from his possession.
In Kehr v. Hall, 117 Ind. 405, the court said: “The second paragraph of the complaint is, in our opinion, bad. It is alleged that the appellee was directed by the Elkhart Circuit Court to take possession of the property in the chattel mortgage described, and that he demanded possession thereof of the appellants, and they refused to surrender the possession, but converted the property to their own use wrongfully-. It is not alleged that the-appellee ever had possession of the property, but the inference to be drawn from what is alleged is that -he never had the possession, thereof. Erom all that appears in this paragraph of the; complaint, it does not appear that the appellee was entitled to the possession of the property.” -
In Ryan v. Hurley, 119 Ind. 115, the second paragraph-of the complaint was held bad because it was not averred that the horse alleged to.have-been converted, was of any value, or that the plaintiff sustained any damage by reason.of such conversion.
In Kidder v. Biddle, 13 Ind. App. 653, the third paragraph of the complaint was for-conversion. The court said: “It is insisted that the demurrer should have been sustained
Noblett v. Dillinger, 23 Ind. 505, was a suit for conversion of a promissory note. The second paragraph of complaint avers that the note was the property of the husband of the plaintiff, who died, leaving property worth less than $200; that the plaintiff had filed her petition in the court of common pleas alleging that fact; that appraisers had been appointed, who had returned an inventory and appraisement of such property, including the note, amounting to $289; and that the proceedings upon her petition were yet pending; that the note was obtained by the defendant wrongfully. Held that the order of the common pleas court ordering the delivery of the property to her was necessary to give her title thereto, and that the suit was prematurely brought.
We do not deem it necessary to refer in detail to the numerous other cases cited in appellant’s brief. They are to' the effect that a plaintiff must aver in such, an action ownership of the property, or, as was said in Day v. Watts, 92 Ind. 442, “Some special or qualified interest in the property, which was either impaired or destroyed by the wrong
The cases cited by the appellant do not show a fiduciary relation between the parties. The transactions were between strangers. The one was as much entitled to the possession • of the property in controversy as the other. In the causé before us, the parties determined by their agreement their respective attitudes with respect to the property toward one another. ‘ Appellant accepted the position of agent of his principal, the appellee. He recognized his principal as the owner of the property with reference to which he contracted, or at least as entitled to its possession and control. This right, as agent, he could not question. Under the law, a principal suing his agent for conversion need make no demand for the return of the property before bringing suit, the law recognizing his right where such relations' exist to the property. The complaint shows a violation of his trust.
The case of Yardman v. Wolf, 54 N. Y. Supp. 192, is in many of its features similar to the case at bar. It is stated (quoting the syllabus, which is borne out by the text)“A complaint for conversion, alleging that certain rugs were delivered by plaintiffs to defendant as a factor, to be sold, and that defendant refuses to account, — i. e. to state how many rugs have been sold by him, — which, by virtue of their agreement, gives plaintiffs the immediate right to demand a return of the goods on hand, and of the proceeds of any that have been sold, sufficiently alleges a right of possession to sustain the action.” In the opinion the court
In the following cases our courts have held that where a complaint is questioned for the first time upon appeal, it will be held good, if it is súffieient to bar another action for the same cause. Burkhart v. Gladish, 123 Ind. 337; Citizens St. R. Co. v. Willoeby, 134 Ind. 563; DuSouchet v. Dutcher, 113 Ind. 249; Chapell v. Shuee, 117 Ind. 481; Colchen v. Ninde, 120 Ind. 88; Beal v. State, ex rel., 77 Ind. 231; Field v. Burton, 71 Ind. 380; Donellan v. Hardy, 57 Ind. 393; Harper v. Pound, 10 Ind. 32; Bertha v. Sparks, 19 Ind. App. 431.
In Burkhardt v. Gladish, supra, the court said: “The sufficiency of the complaint is questioned for the first time in this court, and when so questioned it is settled that if the complaint would be good after verdict, or is sufficient to bar another action for the same cause, it. is sufficient to withstand such, an attack.” .
In Citizens St. R. Co. v. Willoeby, 134 Ind. 563, the court said: “It is. a well settled rule that where the sufficiency of a complaint is tested for the first time by the assignment of error in this court, it will be held sufficient, if it contain facts enough to bar another action for the same cause.”
It may be that the Supreme Court and this Court, in the foregoing cases have too broadly stated the rule as to the sufficiency of a complaint when questioned for the first time upon appeal. As to this we give no opinion, but the complaint clearly shows such an interest in the property in question as between the principal and agent as to make it
Dissenting Opinion
Dissenting Opinion.
The complaint in this ease,' omitting the formal parts, is in the following words: “Addison H. Nor-dyke, plaintiff, for a cause of action against Charles N. Mc-Creery,' defendant, says that, heretofore, on and between the 26th day of September, 1895, and the 11th day of March, 1896, the defendant, as agent and employe of the plaintiff, received of and from plaintiff goods, wares, and merchandise of the value of $2,200 to be sold by defendant for plaintiff and accounted for to plaintiff at the sum and price of $1,804.11; that the defendant sold and accounted to plaintiff for said merchandise in the sum and amount of $1,539.16; that a bill of particulars of said goods and credits marked Exhibit A is filed herewith; that the rest and residue of said merchandise, and the proceeds arising from the sale thereof, of the value of $300, the defendant, unlawfully converted to his own use, and embezzled, to the damage of plaintiff .in the .sum of $500, whereby plaintiff demands judgment for $500 and all proper relief.”
The complaint is attacked for the first time upon appeal, by the assignment of erro# that the complaint does not state facts sufficient to constitute a cause of action. It will be observed that the complaint is for conversion. It is the recognized law of this State that- the complaint, to withstand a demurrer for want of sufficient facts in an action for conversion, must allege that the plaintiff is the owner of the property or entitled to its possession at the time it is converted. -These are material averments which are absolutely necessary to be alleged and proved in order to maintain the action. Day v. Watts, 92 Tnd. 442; Ryan v. Hurley, 119 Ind. 115; Kidder v. Biddle, 13 Ind. App. 653; Easter v.
