Hostetter v. Auman

• Decision Date: 09 March 1889
• Docket Number: 13,630
• Citation: 20 N.E. 506,119 Ind. 7
• Parties: Hostetter v. Auman
• Court: Indiana Supreme Court

20 N.E. 506

119 Ind. 7

Hostetter v. Auman

No. 13,630

Supreme Court of Indiana

March 9, 1889

Petition for a Rehearing Overruled May 10, 1889.

From the Montgomery Circuit Court.

The judgment is reversed, with costs.

T. E Ballard, E. E. Ballard and M. E. Clodfelter, for appellant.

B Crane, A. B. Anderson and N. P. H. Proctor, for appellee.

OPINION

Berkshire, J.

The appellant sued the appellee to recover damages for an alleged wrongful conversion of timber. The appellee answered the complaint, in two paragraphs. The appellant demurred to the second paragraph, which demurrer the court overruled. The appellant saved an exception and filed a reply. The case, being at issue, was tried before a jury and a verdict returned for the defendant. The appellant filed a motion for a new trial, which was overruled by the court and the proper exception reserved, after which the court rendered judgment for the appellee.

There are two errors assigned: 1. The court erred in overruling the demurrer to the second paragraph of the answer. 2. The court erred in overruling the motion for a new trial.

The second paragraph of the answer did not admit the allegations of the complaint and offer facts in avoidance thereof; the facts pleaded were in negation of the main fact stated in the complaint--the ownership of the timber alleged to have been converted. The answer was a special denial, and as a pleading of that character was good; but as the same facts were provable under the general denial, there would have been no available error had the court sustained the demurrer.

The court erred in overruling the motion for a new trial. There was no controversy as to the appellee having converted the timber to his own use, as alleged in the complaint, the only controverted question being as to the ownership of the timber.

It was conceded that at a certain date, to wit, November 6th, 1883, Albert W. Booker was the owner of the timber in question, and that on that day the appellant paid him therefor $ 927.00 in cash, and he executed to the appellant the following writing:

"Crawfordsville, Ind., Nov. 6, 1883.

"This certifies that Albert Booker has this day sold to Simeon D. Hostetter one hundred and six oak trees (106) to be taken from the farm known as the William Booker farm, in Franklin township, Montgomery county, Indiana; choice of said trees by said Hostetter. Consideration, nine hundred and twenty-seven dollars, cash paid in hand, receipt hereby acknowledged.

"Attest: Albert W. Booker."

The third reason for a new trial is: "That the court erred in admitting, over the objection of the plaintiff, the evidence of Albert W. Booker, which evidence was of and concerning the negotiations for the purchase of a certain one hundred and six oak trees by the defendant of Albert W. Booker."

The written contract above set out was handed to said witness, and he stated that he executed it, and that contemporaneously therewith the amount of money named was paid to him. Counsel for the appellee then propounded to him the following question: "State what negotiations you had in reference to the sale of timber, and with whom; and state to whom you sold it, whether to this plaintiff or to the defendant, Lafayette Auman." The appellant objected to the question, and stated the grounds of his objection as follows: "1. That all negotiations in reference to the sale of the timber were merged in the written contract of sale made and executed by the witness to the plaintiff, and it is the best and only evidence of what that contract was, or of the fact as to whom the sale was made. 2. That the contract for the sale of growing timber is a contract for the sale of real estate, and to be binding must be in writing; and that any parol contract for the sale of the timber, made prior to the written contract, would be within the statute of frauds and void, and could not affect the written contract between Booker and the plaintiff." These objections were overruled by the court and the proper exception saved.

In answer to the question the witness testified as follows: "I had no negotiations with the plaintiff in reference to the sale of the timber; all of the negotiations in reference to the sale of the timber were made with Lafayette Auman; I was offering it for sale to the highest bidder, and his bid was the best, and I sold to him; he had to come to town to get the money from Hostetter for the timber; Mr. Hostetter paid me the money; I understood he was paying it for Auman; I signed the written instrument dated November 6th, 1883, which has been read in evidence, but understood that it was simply a receipt for the money paid me by Hostetter for Auman."

The fourth reason for a new trial is: "That the court erred in admitting in evidence, over the objection of the plaintiff, the evidence of Lafayette Auman, which evidence was of and concerning the negotiations for the purchase of a certain one hundred oak trees by the said Lafayette Auman."

The witness testified that he was the defendant in the action; knew Albert Booker, and was acquainted with the timber in question; whereupon his counsel propounded to him the following question:

"State all about the negotiations which led up to the sale of the timber, and whether you purchased the timber and what you...