Fordice v. Beeman
| Decision Date | 28 March 1894 |
| Docket Number | 1,045 |
| Citation | 36 N.E. 937,10 Ind.App. 295 |
| Parties | FORDICE v. BEEMAN |
| Court | Indiana Appellate Court |
Petition for rehearing overruled June 21, 1894.
From the Daviess Circuit Court.
Judgment affirmed.
T. M Clark, C. S. Dobbins, H. Q. Houghton, J. B. Marshall, J. W Ogden and W. H. Marshall, for appellant.
W. R. Gardiner, C. G. Gardiner, E. Inman and H. McCormick, for appellee.
The errors assigned are:
1. The court erred in overruling appellant's motion to strike out portions of appellee's amended complaint as set out in the record.
2. The court erred in overruling appellant's demurrer to the first and second paragraphs of appellee's amended complaint.
3. The court erred in overruling appellant's motion for a new trial.
4. The court erred in sustaining appellee's motion to strike out the fourth and fifth paragraphs of appellant's answer to appellee's complaint.
5. The court erred in sustaining appellee's demurrer to the sixth and seventh paragraphs of appellant's answer to the amended complaint.
6. The court erred in overruling appellant's motion to strike out the second paragraph of appellee's reply to the third paragraph of appellant's answer.
None of the motions referred to in the first, fourth, and sixth errors are made parts of the record by any bill of exceptions, and, therefore, no question is presented for our consideration by either of these assignments.
The material allegations in the complaint, so far as necessary for the consideration of the questions presented, are that in December, 1885, appellee was indebted to appellant; that he delivered to appellant (nearly) one hundred and sixty thousand staves under an agreement that appellant should sell the same for not less than the market price, and credit the proceeds on the notes executed by appellee, but that the agreement should not affect the right of appellant to proceed to collect the notes; that after such delivery "Gibson and McDonald, pretending to have some claim against him (appellee) and against said staves, without any notice to said Beeman or said Fordice, unlawfully seized upon said staves," and converted them to their own use; that appellee then, in the name of appellant, instituted and prosecuted an action for the unlawful conversion of said staves; that pending said litigation appellant instituted a suit against appellee on said notes; that appellee filed a set-off against said action for said staves, and that appellant filed a reply to said set-off, in which he set up the pendency of the suit against Gibson and McDonald, to which a demurrer was overruled, "the court holding, in said cause, that the defendant's (appellee's) right to recover in that action for said staves had not matured," as against appellant, and therefore no defense or claim was made in said suit on the notes for said staves, and that judgment was rendered in favor of appellant "for the full amount of the principal, interest, and attorney's fees due on said notes"; that afterwards appellant compromised said suit against Gibson and McDonald for thirteen hundred dollars, "when, in fact, as he well knew, he should have received four thousand dollars, which was the fair market value of said staves, together with the interest thereon from the time of conversion," and appropriated said money to his own use, and has failed and refused to account to said appellee for said staves.
It is first insisted that Gibson and McDonald were necessary parties to the action. There is nothing in this contention. Appellant had settled the matters in difference with them, after the Supreme Court had rendered a decision in his favor. Fordice v. Gibson, 129 Ind. 7, 28 N.E. 303.
If appellee elected to proceed against him for what he had received, or ought to have received, on the staves, appellant is in no position to complain, because Gibson and McDonald were not made parties.
The principal objection urged to the complaint, however, is that it shows a former adjudication. It should be remembered however, that in the transfer of the staves to appellant, it was expressly agreed that credit for the staves was to be given to the appellee only when appellant should realize the money on them, and that in the meantime the appellant was not thereby to be deterred in the prosecution of an action on the notes, and that at the time he brought that suit and obtained his judgment thereon, the action against Gibson and McDonald was still pending, and that appellant had not realized anything for the staves. There was no former adjudication. Campbell...
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