74 N.E. 1105 (Ind. 1905), 20,609, Porter v. Roseman

Docket Nº:20,609
Citation:74 N.E. 1105, 165 Ind. 255
Opinion Judge:Hadley, J.
Party Name:Porter v. Roseman
Attorney:Gifford & Gifford, for appellant. John P. Kemp, for appellee.
Case Date:June 30, 1905
Court:Supreme Court of Indiana
 
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Page 1105

74 N.E. 1105 (Ind. 1905)

165 Ind. 255

Porter

v.

Roseman

No. 20,609

Supreme Court of Indiana

June 30, 1905

From Tipton Circuit Court; J. F. Elliott, Judge.

Action by Abraham Roseman against Robert L. Porter. From a decree denying a part of defendant's set-off, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

Gifford & Gifford, for appellant.

John P. Kemp, for appellee.

OPINION

[165 Ind. 256] Hadley, J.

This is an ordinary action by appellee against appellant, on an open account for goods sold and delivered. Answer in set-off. Reply said to be by general denial, but it is not in the record. Special findings, conclusion of law, and judgment in favor of appellee. The evidence is not in the record. The question for decision arises upon the conclusion of law and motion to modify the judgment.

The special findings disclose the following facts: Prior to the commencement of this action there was owing the plaintiff (appellee), a resident of New York, from the appellant, $ 249, for goods sold and delivered. There was also owing the plaintiff from William Mount, a former merchant of Elwood, for goods sold and delivered prior and subsequent to June 10, 1897, $ 432. On said June 10, 1897, Mount was in the employ of the defendant on a fixed salary, and had charge of the defendant's jewelry store in Elwood. On the latter date the plaintiff's agent, knowing that Mount had no interest in the defendant's said store except as salesman, called upon Mount therein for a settlement of his indebtedness to the plaintiff, and during the call assisted Mount in making a sale of a diamond belonging to the defendant, and received $ 35 of the proceeds, which he credited to the account of Mount, and turned it over to the plaintiff. The balance of the account was arranged by Mount's executing to the plaintiff and delivering to said [165 Ind. 257] agent his notes for the amount, payable in monthly instalments of $ 20 each, beginning October 31, 1899. The notes were delivered to the plaintiff in New York, and, as they severally became due, were placed by the plaintiff in a bank in New York for collection, and by that bank forwarded to a bank in Elwood, at which latter bank eight of said notes first maturing were paid by Mount from money belonging to the defendant, which he had received from sales made from said store. The plaintiff had no knowledge of the ownership of the money used in the payment of his notes. As they were paid the Elwood bank remitted a like sum of money to the New York bank, where it was credited to plaintiff's account, but there was no evidence that any part of the identical money paid by Mount was remitted to New York or received by the plaintiff.

The conclusion of law is that the defendant is entitled to a set-off for the $ 35 knowingly received by the plaintiff's agent from the sale of the defendant's diamond, and that the plaintiff is...

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