Johnson v. Culver

• Decision Date: 13 December 1888
• Docket Number: 13,289
• Citation: 19 N.E. 129,116 Ind. 278
• Parties: Johnson, Administrator, v. Culver, Administratrix
• Court: Indiana Supreme Court

19 N.E. 129

116 Ind. 278

Johnson, Administrator, v. Culver, Administratrix

No. 13,289

Supreme Court of Indiana

December 13, 1888

From the Tippecanoe Circuit Court.

Judgment reversed, at the costs of the appellant, with instructions to sustain the appellee's motion for a new trial.

R. P Davidson, J. C. Davidson, S. P. Baird and J. B. Sherwood, for appellant.

J. R Coffroth, T. A. Stuart and A. L. Kumler, for appellee.

OPINION

Elliott, J.

The first paragraph of the appellant's claim or complaint alleges that the appellant's intestate, Sarah Rohler, owned a large amount of personal property; that she was of unsound mind at the time of her death, and that the appellee's intestate, Moses C. Culver, wrongfully appropriated, under a fraudulent contract, that personal property.

The second paragraph of the complaint alleges that Sarah Rohler was, for a long time prior to her death, the owner of one hundred and ten acres of land; that she was of unsound mind; that Moses C. Culver undertook to manage the property, and that he collected and appropriated the rents of the property to his own use.

A special verdict, embodying much evidence, and going unnecessarily into detail, was returned by the jury, but we do not deem it necessary to set forth the verdict at length, for it would uselessly encumber the record with irrelevant and redundant matter. We believe that the questions presented can be understood and discussed by referring to such parts of the verdict as affect each particular question, and that course we shall pursue.

The questions were presented by motions for judgment on the facts found, and this was the appropriate procedure. A party who deems himself entitled to judgment on a special verdict should move for judgment, and, if unsuccessful, preserve the question by an exception. Austin v. Earhart, 88 Ind. 182, vide opinion, p. 183; Dixon v. Duke, 85 Ind. 434.

Where the causes of action are clearly distinct and different, then it is proper to move, as was done here, for judgment on each cause of action, since it is obvious that a party may be entitled to judgment on one and not on the other.

The questions arising on the special verdict are thus appropriately presented, and we will decide them in substantially the order in which counsel have discussed them.

The counsel of the appellant thus state their first position:

"The most important ruling of which we complain is the sustaining of the defendant's motion for judgment in her favor, upon the facts found in the special verdict, upon the issues formed upon so much of the allegations of the first paragraph of the claim as seeks to recover because of the appropriation by defendant's intestate of the promissory notes therein described, and the moneys arising therefrom."

That part of the special verdict which affects this particular phase of the case is, in substance, as follows:

"William Rohler died intestate, and Sarah Rohler was his widow and sole heir. He left a considerable amount of personal property, among it, the promissory notes referred to in the first paragraph of the claim or complaint.

"At the time of the death of William Rohler, Sarah Rohler was a person of unsound mind, continued to be a person of unsound mind, and of weak mind and easily influenced, until the day of her death, which occurred on the 1st day of January, 1884.

"At the instance of Moses C. Culver, Sarah Rohler was by this court, on the 26th day of June, 1879, appointed administratrix of the estate of William Rohler, and Culver became her surety on the bond she gave as such administratrix.

"On the 26th day of June, 1879, by a previous arrangement between Culver and one James Davidson Murphy, Sarah Rohler was brought from his, Murphy's, residence in Montgomery county to the Bramble House, a public hotel in the city of Lafayette, in the county of Tippecanoe, where these three persons, together with the wife of Murphy, met, and where letters of administration were issued to Sarah Rohler as aforesaid; and at the same time and place Sarah Rohler executed a deed of conveyance to the wife of Murphy of all the real estate owned by her, which deed had been prepared by a notary about three days before said last date, at the instance of Culver, and the deed, at the suggestion of Culver, was deposited in the vault of P. P. Culver, a son of M. C. Culver.

"J. D. Murphy was, on the 18th day of June, 1879, appointed, by a written power of attorney, a pretended agent for Sarah Rohler for the transaction of her business, at the instance of M. C. Culver."

All of the notes belonging to the estate of William Rohler were placed in the Indiana National Bank of Lafayette for collection.

In November, 1879, Culver went to the house of J. D. Murphy, where Mrs. Rohler was then living, and made a proposition to purchase from him, as the agent of Mrs. Rohler, all of the promissory notes and the money collected by the bank. At the same time he offered to pay Murphy $ 100 for his own benefit if the proposition was accepted by Mrs. Rohler. Murphy agreed to submit Culver's proposition to her, but said that he would not advise "either for or against it." He did submit the proposition to her, but he did not tell her that Culver had agreed to pay him $ 100 in case the proposition was accepted.

On the 2d day of December, 1879, Murphy, as the agent of Mrs. Rohler, entered into a written contract with Culver, wherein he, as the agent of Mrs. Rohler, agreed that the notes should be transferred to Culver. The consideration for the transfer was the agreement of Culver to pay some claims, attorney's fees and court costs in the matter of the estate of which Mrs. Rohler was the administratrix, $ 1,000 in money, and in addition to convey to Mrs. Rohler forty acres of land in White county. This contract was subsequently submitted to Mrs. Rohler and approved by her.

On the 2d day of December, 1879, there was in bank to the credit of Sarah Rohler $ 1,809.06, collected on the notes previously deposited, and there were, also, uncollected notes to the amount of about $ 1,100.

At the time this contract was made Mrs. Rohler had no knowledge of the amount that had been collected on the notes. The total consideration agreed to be paid by Culver, including the land in White county, was $ 1,569.54. Murphy was paid the $ 100 promised him by Culver. The White county land was conveyed to Mrs. Rohler on the 5th day of December, 1879.

The facts found establish fraud on the part of Culver. This is quite clear, and we do not understand appellee's counsel to maintain that there was not fraud sufficient in force to vitiate the contract. To the element of fraud is added that of insanity. We have, therefore, the case of a man securing from an insane woman property of the value of $ 2,909 for a consideration of $ 1,569. The money in bank alone exceeded the whole consideration by more than two hundred dollars. The case is one which calls strongly for relief, and relief should be granted unless some imperative rule of law stands between it and the claimant.

The rule which the appellee invokes for protection is, that a contract can not be avoided unless the plaintiff returns, or offers to return, what he has received. The specific application of this rule which counsel make is, that the appellant must fail to recover the entire value of the notes because the White county land has not been re-conveyed to the appellee.

The general rule in many cases unquestionably is that stated by the appellee's counsel, but we regard it as not applicable to this case. We understand the law to be, that a defrauded plaintiff may either rescind the contract in toto, or he may affirm the contract and sue for the damages caused by the defendant's fraud. Home Ins. Co. v. Howard, 111 Ind. 544, 13 N.E. 103.

In ordinary cases, that is, cases not complicated by the element of insanity, the plaintiff who elects to rescind must tender back the consideration received; but where he elects to sue for damages no tender is required. We do not, however, deem it necessary to inquire or decide what the rule is where a rescission is demanded, and both fraud and insanity are present, for we think this is not a case for rescission, but we think, as we have said, that it is an action for damages. We regard the claim not as a demand for rescission, nor as a demand for the recovery of specific property, but as a demand for the recovery of the value of personal property obtained under a contract with an insane person procured by fraud.

The first inquiry, as the case is presented by the record, is, therefore, what damages shall be awarded in such a case to the representative of the defrauded person? He seeks compensation, and to compensation he is entitled. Full compensation is his due, but nothing more. He can not make the purchaser pay more than the loss sustained. We can not, therefore, concur with the appellant's counsel that their client was entitled to recover the value of the notes and money, irrespective of the compensation actually paid Mrs. Rohler, but we think that he is entitled to recover the value of the notes less the consideration paid to Mrs. Rohler and retained by her.

As given in the brief of counsel, the value of the notes and money aggregates $ 2,909.06, and the consideration paid was $ 1,569.54. The loss actually sustained is the difference between these two sums (assuming that they are correctly stated), which is $ 1,339.52, and as this sum represents the loss actually sustained, it should be the measure of recovery. As the seller received $ 1,569.54, all she lost was the value of the notes in excess of that sum, and this furnishes the measure of damages for this item of the appellee's claim. Our conclusion upon the immediate...