Fullenwider v. Goben

• Decision Date: 06 October 1911
• Docket Number: No. 21,889.,21,889.
• Citation: 95 N.E. 1010,176 Ind. 312
• Parties: FULLENWIDER v. GOBEN.
• Court: Indiana Supreme Court

176 Ind. 312

95 N.E. 1010

FULLENWIDER

v.GOBEN.

No. 21,889.

Supreme Court of Indiana.

Oct. 6, 1911.

Appeal from Circuit Court, Fountain County; I. E. Schoonover, Judge.

Action by John C. Fullenwider against John L. Goben. Judgment for defendant, and plaintiff appeals. Affirmed.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.

H. D. Van Cleave and C. B. Marshall, for appellant. Johnston & Johnston, for appellee.

MYERS, J.

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 demurrerwas sustained to the first paragraph, and error is here assigned upon the alleged error of the Montgomery circuit court, and upon the action in setting aside the ruling of that court, and sustaining the demurrer to the first paragraph, in the Fountain circuit court. Neither of the paragraphs or the substance of either are set out separately in the briefs, but there is one statement set out embracing the substance of each, and not challenged by appellee.

The complaint is quite lengthy, but the substance of it is that in December, 1905, appellee, for the purpose of deceiving, misleading, and defrauding appellant, falsely represented to him that he was the owner in fee of certain described real estate, in 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, as did a son and his family, and was running the hotel; that appellant believed and relied upon his statement as true, and appellee knew it was false, and knew that appellant 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 appellee, the latter deceitfully, falsely, and fraudulently represented to appellant that, if he would find him a purchaser or 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 appellee never intended to pay appellant, or to execute such contract; that appellant, relying upon his representations and promises, and believing them to be true, spent $160.50 in money at the appellant's special instance and request in railroad fares, hotel expenses, telephone and telegraph bills, and transportation, and spent 41 days of time of the value of $840; that he did furnish a customer to defendant who traded for the hotel; that, when the transaction came to be closed, appellee claimed that, before he could close, it would be necessary that he procure a loan of $13,000 on the hotel property and furniture, unless the purchaser would take the property subject to a $13,000 mortgage, and that appellant 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 set about to procure such loan, procured an appraisement of the property, and submitted applications to various loan companies, in and about which he spent $25 in money, and 10 days time, of the value of $200, when he for the first time discovered that appellee had no title to the real estate, and no loan could be procured; that during all that time appellee knew he had no...