78 Ind. App. 418 | Ind. Ct. App. | 1922
Lead Opinion
— This is an action by appellee against appellant for money had and received. The complaint is in the usual form for such an action, and was answered by a general denial. The cause was submitted to the court for trial, and on request a special finding of facts was made and conclusions of law were stated thereon. The court found, among other things, that on December 6, 1917, the Morton Place Automobile Company, a corporation, was the owner of certain personal property of the value of $1,500, and had liabilities aggregating approximately $3,000; that on said day Elder C. Zaring, who was the treasurer and manager of said company, sold its said personal property for the sum of $1,500, which sum he received and converted to his own use; that on said date said Zaring was indebted to appellant in the sum of $1,500, evidenced by his personal notes executed to it; that after he received said $1,500 from the sale of the personal property belonging to said company he deposited the same with appellant in his own name and to his own account; that thereafter, by his personal checks on said account, he turned over to appellant said sum of $1,500, in discharge of his said
Appellant, in support of its contention that the court erred in stating its conclusions of law, asserts that appellee is not entitled to recover in this action, under the facts found, because there is a failure to find that it had notice of the source of the $1,500 belonging to the Morton Place Automobile Com7 pany, which was applied by Zaring on his indebtedness to appellant, as stated in the special finding of facts. Appellant has cited numerous decisions of courts of other jurisdictions in an effort to sustain its contention, that such notice is essential to a right of recovery in an action of this kind. However, we need not consider what the rule in this regard may be in such jurisdictions, as a contrary rule has been established in this state, which we must follow. Porter v. Roseman (1905), 165 Ind. 255, 74 N. E. 1105, 112 Am. St. 222, 6 Ann. Cas. 718; Citizens Bank, etc. v. Harrison (1891), 127 Ind. 128, 26 N. E. 683.
It is contended by appellant in its brief in its propositions or points, under the heading that the court erred in stating its conclusions of law on the facts found, that appellee tried this cause on the theory of following a trust fund, notwithstanding it is an- action for money had and received; and that on such theory, appellee was not entitled to recover without a finding that appellant, at the time it received the money in payment of the indebtedness of said Zaring, had knowledge of the breach
The remaining point made by appellant, in support of his contention that the court erred in stating its conclusions of law, is based on the equitable rule that, where one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss'must sustain it. While this rule is one of general application, it has many limitations and qualifications, and will not be applied where the wrong was accomplished through the instrumentality of a criminal act. 21 C. J. 1172. Nor will it be applied to cast the loss upon a principal merely because the one committing the wrongful act was his agent. As said by Judge Cooley, in discussing the rule under consideration: “While the principle invoked is a very just and proper one, it is one that must be applied with great circumspection and caution. Any person may be said to put another in position to commit a fraud when he confers upon him any authority which is susceptible of abuse to the detriment of others; but if the authority is one with which it is proper for one man to clothe another, negligence cannot be imputed to the mere act of giving it,” N. Y. Iron Mine v. Negaunee Bank (1878), 39 Mich. 644. The facts found in this case not only show that the said Zaring was guilty of a crime, when he converted the money of the automobile company to his own use, and applied the same in
Appellant predicates error on the action of the , court in overruling its motion for a new trial. Of the many reasons appearing therein, we will- only consider those that are statutory and properly stated. It is asserted that the decision of the court is not sustained by sufficient evidence. This contention is based on a claim that the evidence fails to show the following facts expressly found by the court: (1) That the $1,500 in question was converted by said Zaring to his own use. (2) That he applied the same in payment of his personal indebtedness to appellant. (8) That in the payments made to appellant therefrom, the said automobile company received no consideration therefor. The undisputed evidence shows that said Zaring sold the assets of said automobile company and received therefor the $1,500 in question, and that he deposited the same with appellant in his own name. This fact affords some evidence that Zaring converted the money to his own use, and, when taken in connection with other circumstances shown, requires us to accept the first finding challenged, as conclusive on appeal. The second finding challenged is not essential to appellee’s right of recovery, since the fact of conversion is not dependent thereon. There is evidence tending to show a conversion of the money, regardless of its subsequent application, and hence if such finding be eliminated, as not sustained by the evidence, no cause Would exist for a new trial. Major v. Miller (1905), 165 Ind. 275, 75 N. E. 159.
The claim is made that the assessment of the amount of recovery is erroneous, being $167.37 too large. This contention is based on the fact, that as far as the evidence discloses, the only check drawn on the fund in question in favor of appellant, after its deposit in the name of said Zaring, was $1,332.63. If we could say that appellant’s liability was confined to such an ampunt, as the evidence shows that it received from such fund, after it was so deposited by said Zaring, there might be some merit in this contention. However, its liability is not necessarily so limited, as there is evidence tending to show that the $1,500 in question, belonging to the automobile company, was converted by said .Zaring to his own use when he deposited the same with appellant in his own name. In that event its liability would extend to the whole amount, in the absence of evidence
Contention is made that the court erred in admitting in evidence the record of the testimony of Bertha Keilholz, given in the trial of cause No. A-1628 mentioned in the special finding of facts, but as this action of the court is not named in the motion for a new trial as one of the grounds therefor, it does not constitute available error on appeal. New Long Distance Tel. Co. v. White (1910), 45 Ind. App. 382, 90 N. E. 1038.
One of the reasons contained in appellant’s motion for a new trial reads as follows: “The court erred in admitting any and all evidence in any way connected with Cause A-1628, which same was begun on January 9, 1918, in Marion Superior Court, Room 1, and in Cause A-1628 proceedings supplemental to execution April 9, 1918, Marion Superior Court, Room 1.” The record discloses that the court admitted in evidence the complaint, answer, verdict and judgment in said cause A-1628, also the complaint and judgment in said proceedings supplemental to execution. The, reason stated, therefore, is insufficient to present any question for our consideration, as it clearly violates the well-established rule, “that causes for a new trial» shall be assigned with clearness, certainty, precision and particularity,” and under which it has been held, that where documentary evidence is involved, it should name the particular instrument which was improperly admitted or excluded. Ball v. Balfe (1872), 41 Ind. 221; Marsh v. Terrell (1878), 63 Ind. 363; McClain v. Jessup (1881), 76 Ind. 120; Heltonville Mfg. Co. v. Fields
Buckeye, etc., Co. v. Stewart-Carey, etc., Co. (1915), 60 Ind. App. 302, 110 N. E. 710. As to the remaining items of evidence relating to said cause, which it is claimed the court erred in admitting, it suffices to say that the record fails to show that appellant made any objection to its introduction, and hence its admission cannot be made the basis of reversible error. McCray v. Whitney (1914), 56 Ind. App. 94, 104 N. E. 979.
Appellant finally contends that it is entitled to a new trial, because the court erred in permitting appellee to introduce evidence and recover on the theory of money had and received, after proceeding to trial on the openly avowed theory of seeking to follow a trust fund. It suffices to say in answer to this contention, that the record fails to show by a bill of exceptions or otherwise, that appellee proceeded to the trial of the cause on such openly avowed theory. If there was such an open avowal, which appellant believed in any way prejudiced it in the trial of the cause, and on which it desired to base error, it should have brought the same into the record by a bill of exceptions, as a statement of the facts in the ihotion for a new trial will not suffice. Hood v. Tyner (1891), 3 Ind. App. 51, 28 N. E. 1033; Michael v. State, ex rel. (1915), 57 Ind. App. 520, 108 N. E. 173; Ramseyer, Exr., v. Dennis (1917), 187 Ind. 420, 116 N. E. 417, 119 N. E. 716.
Dissenting Opinion
Dissenting Opinion.
— I concede that the principal opinion is correct if we are to follow the case of Porter v. Roseman (1905), 165 Ind. 255, 74 N. E. 1105, 112 Am. St. 222, 6 Ann. Cas. 718. In my opinion, however, the Porter case is utterly wrong in holding that one who receives stolen or embezzled money, in the due course of business and without fraud, acquires no title to it. Money is designed to pass freely from hand to hand in commercial and industrial transactions. It is a circulating medium of the highest rank; but the decision - in the Porter case reduces it to a rank below that of negotiable instruments. The cases cited therein to sustain this feature are cases involving the law of chattels. Except in Indiana, the rule seems to be universal that where money is transferred to a bona fide taker by one who obtained it feloniously, the transfer being in due course of business, the bona fide taker acquires a good title to it as against the person from whom it was ■feloniously acquired. In such cases bad faith alone will defeat' the title of the taker. Our state cannot afford to allow the Porter case to stand. First Nat. Bank, etc. v. Gibert (1909), 123 La. 845, 49 So. 593, 25 L. R. A. (N. S.) 631, (and note thereto) 131 Am. St. 382. I do not care to extend this opinion by further discussion or citation of authorities. This cause should have been transferred to the Supreme Court, with a recommendation that the Porter case be overruled.