Woods v. Shearer, 56 Ind. App. 650

Woods v. Shearer

56 Ind. App. 650 | Ind. Ct. App. | 1914

Hottel, J.

Ella Shearer, hereinafter referred to as appellee, brought this aetion against appellant and her coappellee to recover possession of certain household goods and personal property alleged to havq) been, unlawfully and fraudulently obtained from her. The complaint was in two paragraphs. The second paragraph is the usual complaint in replevin. The first paragraph, in addition to containing the averments necessary and usual in a replevin aetion, averred in detail facts showing how the possession of the property in question was obtained from appellee, viz., that the appellant and appellee Tongret, conspiring to cheat and defraud appellee out of her property, made certain false and fraudulent representations whereby they induced appellee to accept as payment therefor certain stock that was worthless; that appellee offered to rescind, tendered back the stock so obtained by her and demanded the return of her property, etc. Appellant filed an answer in general denial. Appellee Tongret defaulted. The cause was submitted to the court for trial and it found for appellee and against appellant and said Tongret and rendered judgment awarding the possession of said property to appellee, together with one cent damage, etc. Appellant’s motion for a new trial was overruled and this ruling is the only error assigned.

1. 2. *6523. *651The grounds of the motion for a new trial relied on for reversal are those which charge that the decision of the trial court is contrary to law and not sustained by sufficient evidence. It is in effect conceded that appellant obtained possession of the goods in controversy by virtue of a purchase in which she gave in payment for such goods, 40 shares of stock of $10 each (face value) in a corporation known as “The Bond and Realty Company”. It follows therefore that appellant’s obtaining possession of this property in the first instance was not wrongful in the sense contemplated by §1330 Burns 1914, §1266 R. S. 1881, authorizing an aetion in *652replevin. Jarrett v. Cauldwell (1911), 47 Ind. App. 478, 480, 94 N. E. 790. Sncli a suit is a possessory action and it was incumbent on appellee to show her right to possession of the property sued for at the time her action was commenced. Jarrett v. Cauldwell, supra. If, however, the contract, under which such possession was obtained, was tainted with fraud such contract was voidable at the election of appellee, and she could render appellant’s detention of the property in question unlawful, under said section of the statute, by an offer to rescind the contract, viz., by an offer to restore the property she had received thereunder and a demand for her own property. Jarrett v. Cauldwell, supra, and authorities cited. It appears therefore that before appellee was entitled to recover in this case she had to show that the property in question was obtained in the first instance by appellant’s fraudulent representations, and that the possession thus obtained, though not wrongful when obtained, was rendered unlawful because of appellee’s offer to restore and turn back that which she had received, and her demand for that which she had given in exchange. She would, however, be relieved from an offer to restore, if the property received by her in exchange for that given by her was worthless and of no value, to either party, or if, on account of some act of appellant, restoration was rendered impossible or unnecessary. Cates v. Bales (1881), 78 Ind. 285, 288, 289; 35 Cyc. 149, 150, and cases cited in notes; 21 Am. and Eng. Ency. Law 84-87, and cases cited in note 1, page 87. Ferguson v Hull (1894), 136 Ind. 339, 348, 36 N. E. 254; Sheldon Axle Co. v. Schofield (1891), 85 Mich. 177, 48 N. W. 511.

*6534. *652It is appellant’s contention that the evidence in the case wholly fails to show either fraud in procuring the property in the first instance, or any offer to restore that received by appellee, or any demand for a return of the property so obtained from her, and fails to show any valid excuse for the failure to offer to restore, etc. ¥e have examined with *653care the evidence pertinent to these several questions, and are convinced that there is ample evidence to justify the decision of the trial court on the first proposition. Fraud being difficult to prove, a wide scope is given to the evidence. Fraud is said to assume many shapes, disguises and subterfuges, and is sometimes so secretly perpetrated that it can only be detected by facts and circumstances that are apparently trivial. Hoffman v. Henderson (1896), 145 Ind. 613, 619, 44 N. E. 629; Levi v. Kraminer (1891), 2 Ind. App. 594, 28 N. E. 1028. The facts and circumstances in this ease clearly show fraud on the part of Tongret, and there are several facts and circumstances that indicate appellant’s knowledge of and connection therewith. There was ample proof to justify an inference of fraud on the part of appellant in obtaining the property in the first instance.

3. Upon the other question, while the evidence is not so satisfactory as that on the first proposition, yet, we think there was evidence which justified either or both of two inferences by the trial court, viz.; (1) that the stock turned over by appellant in exchange for the property in question was absolutely worthless and of no value to either of the parties, and (2) that appellee before bringing her suit in company with her lawyer went to appellant and made a good faith effort and attempt to rescind the contract by an offer to restore the property received by her and a demand for .that received by appellant, and that appellant by her words, acts and conduct indicated to appellee that she, appellant, was not in a position to restore the property received by her for the reason that she did not have it, and that an actual physical tender by appellee of the stock so received by her and further demand of that received by appellant would be unnecessary and useless. This evidence, under the authorities, supra, was sufficient to justify the decision of the trial court. See, *654also, Parrish v. Thurston (1882), 87 Ind. 437, 439. The judgment is therefore affirmed.

Note. — Reported in 105 N. E. 917. As to when and against whom replevin is sustainable, see 80 Am. St. 741. See, also, under (1) 34 Cyc. 1405; (2) 34 Cyc. 1386; (3) 34 Cyc. 1402; (4) 34 Cyc. 1508; 20 Cyc. 122.