Valentine v. Duff

• Decision Date: 01 March 1893
• Docket Number: 719
• Parties: VALENTINE ET AL. v. DUFF ET AL
• Court: Indiana Appellate Court

33 N.E. 529

7 Ind.App. 196

VALENTINE ET AL. v. DUFF ET AL

No. 719

Court of Appeals of Indiana

March 1, 1893

Reported at: 7 Ind.App. 196 at 198.

From the Starke Circuit Court.

Judgment affirmed.

H. R Robbins, for appellants.

G. W Beeman, for appellees.

ROSS J. GAVIN, J., dissents.

OPINION

ROSS, J.

The appellants brought this action to recover the value of personal property alleged to have been converted by appellees to their own use.

Trial by the court, and, by request, the court made a special finding of the facts with conclusions of law thereon.

Three errors are assigned in this court, but in presenting his argument, counsel for appellants says they "amount to really but one, though differently stated." The only error discussed is "that the court erred in his conclusion of law."

Counsel for the appellants insists that the complaint is a joint one against all of the defendants, and that if they were not entitled to recover against all of the defendants, they could not recover at all. While we do not concur in this view of the appellants' rights under the complaint, we will accept his theory for the purposes of this case.

This action was commenced in April, 1891. The court finds as a fact that the wheat alleged to have been converted by the defendants to their own use was raised by the defendant Walle, on lands belonging to the plaintiffs, he being their tenant, and was the share of the wheat assigned and set off to them by said Walle as such tenant; that the plaintiffs and one Stryker both claimed to be the owners of the wheat, and, to settle the question of such ownership, the plaintiffs, in January, 1891, recovered a judgment in replevin against said Stryker and Walle "for the recovery of the wheat, or in lieu thereof a judgment against Walle for the value of the wheat;" that pending the replevin suit, Walle, the agent of Stryker, hauled the wheat and stored it in the barn of the defendant Fulmer; that the defendant Schall, "as an employe of the said Stryker," hauled the wheat from Fulmer's barn to the elevator of the defendant Caffyn, and sold it to the defendant Duff, as the agent of Caffyn.

The court finds that the defendant Fulmer received no part of the consideration for the wheat, and had no knowledge of the controversy between the plaintiffs and Stryker and Walle. The fact that the wheat was stored by Walle in Fulmer's barn does not show a conversion by Fulmer....