Breedlove v. Bundy

• Citation: 96 Ind. 319
• Decision Date: 06 March 1884
• Docket Number: 10,745
• Parties: Breedlove et al. v. Bundy
• Court: Supreme Court of Indiana

96 Ind. 319

Breedlove et al. v. Bundy

No. 10,745

Supreme Court of Indiana

March 6, 1884

Reported at: 96 Ind. 319 at 325.

From the Superior Court of Marion County.

T. E Johnson and I. Klingensmith, for appellants.

W Wallace, L. Wallace, N. Morris and L. Newberger, for appellee.

OPINION

Franklin C.

The error complained of in this court is that the court in general term erred in affirming the judgment of the special term.

The errors assigned in the general term were:

1st. Overruling the separate demurrer of appellant Breedlove to the complaint.

2d. Overruling the separate demurrer of appellant McClellan to the complaint.

3d. Overruling the motion of Breedlove and McClellan for a new trial.

The sufficiency of the complaint is first presented, which reads substantially as follows: That appellants, Breedlove and McClellan, together with their co-defendants, Gossett and Gause, on the 1st day of May, 1879, conspired and confederated together to cheat, swindle and defraud the plaintiff of a certain stock of goods owned and kept by him in a grocery store in the city of Indianapolis in said county, of the value of $ 1,000; "that, in pursuance of said conspiracy and confederation, said Breedlove and McClellan came together on or about said day to this plaintiff and proposed selling the said stock and good-will for the said plaintiff, and informed him that the said defendant Gossett was desirous of purchasing the same, and had certain notes and mortgage, executed by the defendant Gause, which said Gossett would trade and exchange for the said stock and good-will; and said Breedlove then and there said and represented to the plaintiff that said notes, aggregating in amount the sum of $ 675, were part of the consideration for certain real estate in the town of Plainfield, in Hendricks county, and State of Indiana, and were secured by mortgage on such real estate, and that said real estate was very valuable and was worth $ 4,000; that said McClellan corroborated and assented to all the foregoing representations; that the same were made for the purpose and with the intent of inducing the plaintiff to make and enter into the bargain and trade hereinafter set forth; that the said Breedlove and this plaintiff were members of the Masonic Order, and said plaintiff, on account of such membership, imposed trust and confidence in the said Breedlove, which fact the said Breedlove well knew; that this plaintiff then said that if a satisfactory arrangement could be made, he, the said plaintiff, would be willing to sell out said store and business for $ 700 cash, as he was desirous of quitting said business and was in need of the money; that afterwards, to wit, on the day of May, 1879, said Gossett came to the said place of business of this plaintiff and represented himself as ready and willing to carry out and make the said trade proposed by said Breedlove and McClellan as aforesaid, and, in pursuance of the aforesaid conspiracy and confederation, said and represented to the said plaintiff that the defendant Gause had purchased the interest of his wife, Phoebe A. Gossett, in certain real estate (describing it), and that said Gause owned all but one-seventh of said real estate, and that said Gause had paid for said interest of said Phoebe A. Gossett, $ 975, $ 300 in cash and the remainder in five notes, all dated March 27th, 1879 (describing the notes), and which notes were secured by a first mortgage upon all the real estate aforesaid, and that Gause had money in Harrisons' Bank in the city of Indianapolis, and had proposed to discount said notes for $ 600, and that said real estate was worth more than $ 2,000; that afterwards, to wit, on the 8th day of May, 1879, said defendants Gossett and Gause came together to the plaintiff, and, in pursuance of the conspiracy and confederation aforesaid, the said Gause confirmed the said representations and statements of said Gossett, and said that said notes were well secured and worth their face; that all the foregoing representations and statements were and are false and fraudulent, and were made in pursuance to the conspiracy aforesaid, and for the purpose of fraudulently inducing this plaintiff to bargain and sell said stock of goods for said notes; and that the said defendants did each and all impose upon the trust and confidence of this plaintiff in the said Breedlove for the reasons aforesaid, to prevent this plaintiff from investigating the said property; and that said Gause did acknowledge said indebtedness, and express a willingness to pay the same in pursuance to said conspiracy, and for the purpose of deceiving this plaintiff, and prevent him from investigating said real estate; that on account of the said representations, and induced thereto by them, this plaintiff did bargain and sell the said stock of goods and the said goodwill of said establishment to said Gossett, and did pay to him, the said Gossett, the sum of $ 25 in cash, and the said notes and mortgage, and did deliver possession to said Gossett; * * * that said plaintiff relied entirely upon said representations; that said mortgage was not a first lien upon the real estate aforesaid and said real estate is worthless, and enough to pay the costs of foreclosing said mortgage can not be realized therefrom; and that said Gause never had any title whatever to said real estate, and now refuses to pay the notes aforesaid." Wherefore, etc.

Breedlove and McClellan have alone appealed and assigned errors, and they insist that the complaint, as to them, is insufficient. The complaint sufficiently charges a conspiracy between all the defendants.

The law is well settled that if there was a conspiracy between them, each of them engaged in the conspiracy is liable for the acts and declarations of the others so engaged, done and made in pursuance of the conspiracy. Boaz v. Tate, 43 Ind. 60.

The facts alleged in the complaint sufficiently show that a fraud was committed upon the plaintiff, and as it is alleged that these appellants were engaged in the conspiracy by which the fraud was committed, they are to be held responsible alike with those by whom it was actually committed. There is no error in overruling their separate demurrers to the complaint.

The first reason in the motion for a new trial, insisted upon by appellants, is the overruling of their motion for a continuance. This was an application for a second continuance...