Fullenwider v. Goben
| Decision Date | 06 October 1911 |
| Docket Number | 21,889 |
| Citation | 95 N.E. 1010,176 Ind. 312 |
| Parties | Fullenwider v. Goben |
| Court | Indiana Supreme Court |
From Fountain Circuit Court; Isaac E. Schoonover, Judge.
Action by John C. Fullenwider against John L. Goben. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.
Affirmed.
Henry D. VanCleave and Clinton B. Marshall, for appellant.
Charles Johnston and Will H. Johnston, for appellee.
Appellant instituted an action in two paragraphs in the Montgomery Circuit Court, where a demurrer was sustained to the second paragraph, and overruled as to the first. A change of venue was taken to the Fountain Circuit Court, where a demurrer was sustained to the first paragraph. Error is here assigned upon the alleged error of the Montgomery Circuit Court, and upon the action of the Fountain Circuit Court in setting aside the ruling of the Montgomery Circuit Court, and sustaining the demurrer to the first paragraphs.
Neither paragraph, nor the substance thereof, is set out separately in the briefs, but there is one statement set out embracing the substance of each, and not challenged by appellee.
The substance of the complaint is that in December, 1905 defendant for the purpose of deceiving, misleading and defrauding plaintiff, falsely represented to him that he was the owner in fee of certain described real estate, including a hotel property situate thereon, of the value of $ 60,000 together with furniture and fixtures in the hotel of the value of $ 15,000; that he was in possession of the property lived with his family in the hotel, and was running the hotel; that plaintiff believed and relied upon his statement as true, but defendant knew it was false, and knew that plaintiff relied upon it as true; that for the purpose of deceiving, cheating and defrauding him, and causing him to spend money and much valuable time in behalf of defendant, the latter deceitfully, falsely and fraudulently represented to plaintiff that if he would find him a purchaser, or would trade for the real estate and personal property, he would pay him $ 1,000, and prior to closing the sale or trade would execute to him a written contract to that effect; that at the time of making such representations defendant did not intend to pay plaintiff, or to execute such contract; that plaintiff, relying upon defendant's representations and promises, and believing them to be true, spent $ 160.50, at the special instance and request of defendant, in railroad fares, hotel expenses, telephone and telegraph bills, and transportation, and spent forty-one days' time, of the value of $ 840; that he procured a customer for defendant who traded for the hotel; that when the transaction came to be closed, defendant claimed that he could close the trade only by procuring a loan of $ 13,000 on the hotel property and furniture, unless the purchaser would take the property subject to a mortgage of $ 13,000, and that plaintiff procured the purchaser to agree to do so; that defendant, for the purpose of defrauding plaintiff, deceitfully, fraudulently and falsely represented to him that if he would procure him a loan of $ 15,000 on the real estate he would pay him $ 100 in addition to the $ 1,000 agreed to be paid for furnishing a customer for the hotel; that relying upon and being misled by the representations, believing them to be true, he procured an appraisement of the property, and submitted applications to various loan companies, whereby he spent $ 25 in money, and ten days' time, of the value of $ 200, when he for the first time discovered that defendant had no title to the real estate, and no loan could be procured; that during all that time defendant knew he had no title; that defendant then agreed with plaintiff that if he would procure the purchaser to execute a first mortgage on the property for $ 13,500, and a second mortgage for $ 45,000, he would pay $ 1,000 in cash for procuring the agreement to execute said notes, and that he at the time had no intention to pay plaintiff, but that plaintiff,...
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