Harrold v. Markin, 168

Decision Date06 November 1969
Docket NumberNo. 2,No. 168,168,2
Citation252 N.E.2d 159,145 Ind.App. 619
PartiesVirgil O. HARROLD and Ruth F. Harrold, Appellants, v. Jesse M. MARKIN and Mary C. Markin, Appellees. A 7
CourtIndiana Appellate Court

Peters & Pebbles, Fort Wayne, for appellants.

Kennerk, Dumas, Burke & Backs, Fort Wayne, for appellees.

HOFFMAN, Judge.

This appeal arose from a verdict by the jury and judgment thereon for plaintiffs-appellees on the second paragraph of their complaint. The theory of that paragraph is in issue on this appeal.

The record before us discloses the following facts:

In January of 1963 appellees entered into an agreement with appellants to trade certain properties. Appellees agreed to trade or sell a piece of property which they owned in exchange for a down payment of $2,000, and the balance to be paid by the transfer to them in equities of contracts which were allegedly worth the balance due. Appellees received two conditional sales contracts for the sale of real estate. Appellees failed to discover that the two properties which were the subject of the contracts were already subject to mortgages. In fact, they had not even seen the properties for which they traded until the 'deal' had been closed. They then discovered that both properties were in an extremely run-down condition and, in fact, one of the properties was shortly thereafter condemned.

Appellees demanded that appellants return their former property and accept back the two traded parcels. This appellants refused to do.

A complaint was filed by appellees in two paragraphs. The first paragraph alleged that the defendants had fraudulently procured the conveyance of appellees' property for two 'worthless' properties. The jury found for defendants-appellants on this paragraph of their complaint.

The second paragraph of complaint reads as follows:

'Plaintiffs further say for Second Paragraph of Complaint:

'1. That on the 26th day of January, 1963, they entered into a contract where they were to exchange with the defendants property located at 3126 Oliver Street, Fort Wayne, Indiana, for $2,000.00 cash and $4,500.00 in equity of contracts for said property.

'2. That on the 1st day of February, 1963, these plaintiffs conveyed to the defendants the following described real estate lying and being situate in Allen County, Indiana, to-wit:

Lot 67 in Drexel Park Addition to the City of Fort Wayne, Allen County, Indiana, according to the recorded plat thereof.

'3. That defendants conveyed the following described real estate to the plaintiffs:

Lot No. 60 in Fletcher's Addition to the City of Fort Wayne, Indiana, according to the recorded plat thereof.

Lot No. 35 in Chute's Homestead Addition to the City of Fort Wayne, except the South fifty feet (50 ) thereof, according to the recorded plat thereof.

'4. That at the time of the conveyance of the properties described in Rhetorical Paragraph 3, they were subject to a lien of a mortgage to the Home Loan and Savings Association, located at Fort Wayne, Indiana.

'5. That the conveyances of the land described in Rhetorical paragraph 3 were made subject to the rights of the conditional contract purchasers, Harold Rogers, Betty Rogers, Owen Blue and Rosie Lee Blue.

'6. That the rights of the Home Loan and Savings Association of Fort Wayne, Indiana, are paramount to and prior in time to the right of the conditional contract purchasers.

'7. That the fair market value of the properties conveyed by the Defendants as hereinabove mentioned is less than the balance due on the mortgages held by the Home Loan & Savings Association on said properties.

'8. That the properties conveyed by the Defendants were burdened with delinquent real state taxes in the amount of, 130.30 thereby further reducing the fair market value of the properties in relation to the above-mentioned mortgages held by the Home Loan & Savings Association. (Correction as appears in original.)

'9. That the conveyance referred to in rhetorical paragraph 3 hereinabove was not Four Thousand Five Hundred Dollars ($4,500.00) in equities of contracts, but was in fact a conveyance of worthless property with an obligation for delinquent real estate taxes.

'WHEREFORE, plaintiff prays that they recover a judgment in the sum of Forty Eight Hundred Seventy Five Dollars and thirteen cents ($4,875.13), and all further and proper relief in the premises.'

A verdict was returned on the second paragraph of complaint in favor of plaintiffs-appellees in the amount of $5,613.96, such amount including interest.

Appellants assign as error the overruling of their motion for a new trial, and they specify for argument the following alleged errors:

1. That the court erred in permitting testimony on the appraised value of the real estate as opposed to the value of the conditional sales contracts;

2. That the appellees pleaded an express contract but attempted to prove on the theory of money had and received and, further, that the jury was instructed on the theory of money had and received;

3. That the damages assessed were erroneous and excessive; and

4. That the court erred in overruling defendants-appellants' motion for directed verdict, and that the verdict of the jury is contrary to law.

The central issue here is whether the second paragraph of complaint is based on a theory of express contract or money had and received.

With respect to the second point raised by appellants, there are a number of recent decisions which hold that a variance between the pleading and the proof is deemed amended to conform to the proof. See Morrison's Southern Plaza Corp. v. Southern Plaza, Ind., 246...

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3 cases
  • Kopis v. Savage, 4-485A94
    • United States
    • Indiana Appellate Court
    • 23 Octubre 1986
    ...be ought to repay." Indiana Business College v. Cline (1918), 187 Ind. 59, 119 N.E.2d 712, 713; accord Harrold v. Markin (1969), 145 Ind.App. 619, 252 N.E.2d 159, 161; Horka v. Wieczorek (1917), 64 Ind.App. 387, 115 N.E.2d 949, 950. To maintain this type of action, then, it is necessary to ......
  • Aghnides v. Marmon Group, Inc., Civ. A No. 3438 CH.
    • United States
    • U.S. District Court — Southern District of West Virginia
    • 15 Julio 1972
    ...interest is within the discretion of the court. On the contrary, it plainly states that "interest shall be allowed." In Harrold v. Markin, 252 N.E.2d 159 (Ind.App. 1969), an action for money had and received, the court held that since there was express statutory authority for the mandatory ......
  • Jones v. Hernandez, 1069A170
    • United States
    • Indiana Appellate Court
    • 19 Noviembre 1970
    ...Co. v. La Salle Realty Corp., Ind.App., 218 N.E.2d 141 (1966). We agree and have recently reaffirmed this position in Harrold v. Markin, Ind.App., 252 N.E.2d 159 (1969). Our Supreme Court apparently agrees also. See Morrison's Southern Plaza Corp. v. Southern Plaza, Inc., Ind., 246 N.E.2d 1......

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