Balue v. Taylor
| Decision Date | 25 January 1894 |
| Docket Number | 16,539 |
| Citation | 36 N.E. 269,136 Ind. 368 |
| Parties | Balue v. Taylor et al |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
The judgment is affirmed.
J. T Beasley and A. B. Williams, for appellant.
Appellee Robert H. Taylor filed a complaint in the Sullivan Circuit Court, against the appellant, Marion Balue, and co-appellee John C. Chaney, in which he alleged, in substance, the following facts:
That on and prior to the 9th day of January, 1886, he was the owner of a farm in Clark county, Illinois, of the value of $ 7,000 that at said date said Balue, conspiring to cheat and defraud him out of his farm, and knowing that plaintiff was desirous of selling said land for the purpose of removing to the State of Kansas, proposed to exchange a tract of land in the last named State, for said farm, the Kansas land to be taken and received at the price of $ 5,000, the defendant, Balue agreeing to pay the plaintiff the difference to wit, $ 2,000 in cash; that the defendant induced plaintiff to make such exchange by falsely and fraudulently representing to him that the Kansas land was clear and free from incumbrance, good rich soil, well improved, and of the value of $ 5,000; that the title to said Kansas real estate was in the said Balue, who, with his wife, did, on the 9th day of January, 1886, execute to plaintiff a warranty deed conveying to him said land. Plaintiff says he lived at said farm in Clark county, Illinois, had no knowledge of the title to the Kansas tract, but relied wholly upon the representations of said defendant, made as aforesaid, in relation thereto; that said defendant paid him in cash upon said transaction the sum of $ 1,484, and he conveyed his said land to the defendant, Balue, at his instance and request, and the tract has since been conveyed to other persons; that, after receiving the deed from Balue and wife, he sold his personal property and removed to the State of Kansas, when he, for the first time, learned that all the representations so made by the defendant were false and fraudulent; that the Kansas land was not worth to exceed $ 5,000, and that there was a mortgage incumbrance past due thereon then amounting to $ 1,500. All of which facts were well known to said defendant before said exchange; that immediately, upon learning the facts aforesaid, plaintiff returned and demanded a rescission of said contract and exchange, and a reconveyance to him of the tract of land conveyed by him in Illinois. Whereupon the defendants, Balue and Chaney, conspiring and confederating together to further cheat and defraud plaintiff, informed him that they could not rescind said contract of exchange, because of the sale of said land in Illinois, but in lieu thereof they proposed and agreed that to settle and compromise said matter, they would pay plaintiff $ 3,000 in cash and convey to him fifteen acres of land in Sullivan county, Indiana, worth $ 1,500, and plaintiff agreed to accept said proposition and reconvey said Kansas land upon the performance of the agreement upon the defendant's part, and did, his wife joining him therein, execute a deed for said Kansas land, to defendant John C. Chaney, at the instance and request of both of said defendants, and deposited it with N. G. Buff, to be delivered to the defendants, and said Buff delivered the same to the defendants, who immediately conveyed said land, and while so doing permitted the mortgage thereon to be transferred and foreclosed, and the premises sold to innocent purchasers; that the title to said fifteen acres, in Sullivan county, was in the said N. G. Buff, who immediately conveyed the same to some other person; that the fact that the title was in said Buff was concealed from the plaintiff, and defendant Chaney falsely represented to plaintiff that he was the owner of said land, whereas said Buff was the owner, and defendants had contracted to buy said land and pay said Buff $ 1,200 therefor, and defendants wholly failing to pay said sum, said Buff sold and conveyed the land, as aforesaid; that plaintiff did not learn, until long afterwards, that the defendant Chaney did not own said tract.
Plaintiff says, that said contract was reduced to writing and signed by the plaintiff and defendant Balue, and was left with the latter for the signature of the defendant Chaney, and was delivered to defendants, and is now in their possession, wherefore he says he can not furnish a copy thereof; that no part of said $ 3,000 has been paid; that said fifteen acres of land has never been conveyed to him; that he has been put to a great expense, loss and damage by reason of the fraudulent acts of the defendants, to wit, $ 5,000; that said sum of $ 3,000 is long past due, and he is entitled to interest thereon from the date of said contract, and to the agreed value of said fifteen acres, with interest thereon. Wherefore he demands judgment for ten thousand dollars and other proper relief."
To this complaint the defendant Balue demurred for want of sufficient facts and for misjoinder of causes of action. The demurrer was overruled, to which he excepted. He then filed his answer in general denial.
The record is silent as to the defendant Chaney, in the making up of the issues. He does not seem to have either demurred or answered the complaint.
The issues joined between the plaintiff and Balue was submitted to a jury for trial, and resulted in a verdict for the plaintiff in the sum of $ 5,523.
The defendant Balue filed a motion for a venire de novo, which was overruled, and he excepted. He then filed his motion and written reasons for a new trial. This motion was overruled, to which he excepted. Thereupon the court rendered judgment upon the verdict, and from it he presents this appeal.
The errors assigned are:
1. The court erred in overruling the separate demurrer of Marion Balue to the complaint.
2. The court erred in withdrawing from the jury the written interrogatory submitted to the jury by the court, upon the request of the defendant.
3. The court erred in withdrawing from the jury, after the same had been submitted to the jury by the court, upon the request of the defendant Marion Balue, the following written interrogatory: "Did the plaintiff Robert H. Taylor sell and convey to the defendant Balue his, plaintiff's, farm, situate in Pawnee county, Kansas?"
4. The court erred in overruling the motion of the appellant Marion Balue for a venire de novo.
5. The court erred in overruling the motion of appellant Marion Balue for a new trial.
Under the first specification of error the learned counsel for appellant present an able and ingenious argument, assailing the sufficiency of the complaint upon the ground that a large portion of it is an attempt to charge appellant with a tort in fraudulently misrepresenting his title to the Kansas farm, also in concealing from the appellee the existence of the mortgage lien thereon, and in refusing to rescind the contract of exchange and reconvey his Illinois farm, while the residue, he insists, proceeds upon the theory of a conspiracy between the appellant and his co-defendant Chaney.
After having thus analyzed and summarized the complaint, counsel call our attention to the well settled rule of law, that a complaint must proceed upon a definite theory, and the cause tried upon the theory presented by the pleadings; and such a judgment as the theory adopted warrants must be rendered, and no other or different one. Feder v. Field, 117 Ind. 386, 20 N.E. 129, and citations; First Nat'l Bank, etc., v. Root, 107 Ind. 224, 8 N.E. 105.
It is equally true that the theory of a pleading as to whether it is an action on contract or tort is to be determined from the whole pleading, and not from isolated or detached parts. First Nat'l Bank, etc., v. Root, supra; City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821; Over v. Schiffling, 102 Ind. 191, 26 N.E. 91; Louisville, etc., R. W. Co. v. Schmidt, by Next Friend, 106 Ind. 73, 5 N.E. 684.
In First Nat'l Bank, etc., v. Root, supra, it is said: "This court has often decided that every pleading must proceed upon some single definite theory which must be determined by its general scope and character." Western Union Tel. Co. v. Reed, 96 Ind. 195; Mescall v. Tully, 91 Ind. 96.
It is the law, as contended by counsel, that where a party to a contract seeks to avoid it for fraud, or asks to rescind it on the ground of fraud, he must tender back to the...
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