Waters v. Delagrange

183 Ind. 497 | Ind. | 1915

Spencer, C. J.

— This is an action in conversion in which appellee seeks to recover for certain wheat sown by him, which, it is alleged, was wrongfully appropriated by appellant. The latter has appealed from a judgment of the trial court sustaining appellee’s claim, and challenges the court’s action in overruling his demurrer to the complaint. That pleading, omitting the formal parts, reads as follows: ‘ ‘ Said plaintiff complains of said defendant and says, that heretofore on, to wit, the ■ — — day of April, 1910, and for a number of yéars previous thereto, he, the said plaintiff, was in possession of the farm of his brother in Perry Township, said county and state, as a tenant for an indefinite term, and theretofore, in the fall of 1909, as such tenant had sowed fourteen (14) acres of wheat on said farm; that thereafter, to wit, in the spring of 1910, the said farm was sold by this plaintiff’s brother to said defendant, but said crop of wheat was reserved for this plaintiff; that on the-day of April, 1910, this plaintiff removed from said farm and said defendant, as such purchaser thereof, moved onto said farm; and this plaintiff further says that on the-day of July, 1910, when the said crop of wheat was ripe and ready for harvesting, said defendant refused to permit this plaintiff to go upon said farm to harvest said crop of wheat, and thereafter said defendant cut and harvested said fourteen (14) acres of whéat and took and carried away said wheat, and unlawfully converted and disposed of the same to his own use, whereby this plaintiff was and is damaged in the sum of”, etc.

1. 2. The objection urged against this complaint is that it fails to allege ownership in the plaintiff of the property alleged to have been wrongfully converted at the time said property was so taken. It is true that in an action of this character the complaint must show by direct allegation or by necessary inference from facts well pleaded that, at the time of the alleged conversion, the plaintiff had either a general or special ownership of the property converted. Shellhouse v. Field (1912), 49 Ind. App. 659, 97 N. E. 940. The pleading before us contains no express allegation of title in appellee at the timé the wheat was cut but it does appear that the crop was sowed by him and that the same was reserved for him when the land on which it was planted was sold to appellant. The complaint shows ownership in appellee of the wheat when sowed and the presumption of ownership will continue until the contrary appears. Pittsburgh, etc., R. Co. v. Harper (1895), 11 Ind. App. 481, 37 N. E. 41. We see nothing in the complaint which negatives such presumption. On the contrary, the allegations showing a reservation of the wheat to appellee and his subsequent attempt to harvest the same are sufficient to compel the inference that title to that property remained in him to the time of the alleged conversion. This is the reasonable and necessary inference to be drawn from the pleading as a whole and when so construed in the light of the holding in Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N. E. 675, 102 N. E. 99, the complaint is sufficient as against demurrer.

3. The remaining assignments of error challenge the action of the trial court in sustaining appellee’s demurrers to various paragraphs of appellant’s answer and in overruling the latter’s motion for a new trial. Appellant has failed, however, to copy said demurrers and motion into his brief or there to state their substance. This must be treated as a waiver of any questions sought to be presented by the rulings complained of. Rule 22 of this court expressly requires that the appellant’s brief ■ shall contain “a concise statement of so much of the record as fully presents every error and exception relied on” and omissions in the original brief which are pointed out by the answer brief of appellee can not be cured by supplying them in a reply brief. Gates v. Baltimore, etc., R. Co. (1900), 154 Ind. 338, 56 N. E. 722; Fox v. Worm (1914), 55 Ind. App. 516, 104 N. E. 93.

4. It appears from an examination of the record, however, that the issues which appellant sought to present by his affirmative paragraphs of answer were provable under the general denial and evidence was admitted on behalf of appellant to sustain such issues. The jury found for appellee and its verdict seems to represent substantial justice between the parties. Judgment affirmed.

Notis. — Reported in 109 N. E. 758. As to conversion of personalty sufficient to sustain action of trover, see 24 Am. St. 795. See, also, under (1, 2) 38 Cyc. 2008; (3) 3 C. J. 1410, 1434 ; 2 Cyc. 1014, 1018; (4) 3 Cyc. 443 ; 31 Cyc. 358.