Kurtz v. Cooperider
| Decision Date | 02 June 1920 |
| Docket Number | No. 10403.,10403. |
| Parties | KURTZ v. COOPERIDER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Linn D. Hay, Judge.
Action by Edna F. Cooperider against Leona A. Kurtz, begun in justice court and appealed by defendant to the circuit court. From a judgment there for plaintiff, defendant appeals. Affirmed.
J. Fred Masters, of Indianapolis, for appellant.
J. W. Fesler, Harvey J. Elam, and Howard S. Young, all of Indianapolis, for appellee.
Action in replevin originating before a justice of the peace of Marion county, and finally tried on appeal in the superior court of such county. There was a judgment in favor of appellee. A motion by appellant for a new trial was overruled, which action of the court is the only error assigned.
It appears by the evidence that appellee went to the home of appellant on February 8, 1917, and purchased from her all of the goods in her house, including furniture, dishes, and bedclothes (except her personal clothing and a few dishes and some pictures), all for the agreed price of $75. Appellant and appellee were at the time alone in appellant's home. Appellee prepared a bill of sale, which was also a receipt for the money paid, and appellant signed it. They then went to the bank where the purchase price was paid to appellant, and after appellee had furnished to appellant a statement of the goods excepted from the sale, and had arranged to return the next morning for the goods, they parted. On the following day appellee returned to appellant'shome, prepared to take charge of the goods so purchased, whereupon appellant requested that she be permitted again to see the bill of sale, which was executed upon the day previous. Upon appellee exhibiting the same, appellant snatched the paper from appellee's hands and ran and put it into the stove. She then stated that she had decided not to sell, and that she had a paper for appellee to sign. When appellee told her that she would not sign the paper, appellant drew a revolver and said to her that, if she did not sign it, she would never leave the house. With the revolver pointed at her, appellee signed the paper, which was a receipt for the $75 theretofore paid, writing after her name, by the order and direction of the appellant, the words, “No trouble.” Appellant then ordered appellee to go with her to the next door neighbor, where appellant would have a witness to the paying of the money to appellee, and while in such neighbor's house appellant paid to appellee the $75. Appellant denied that she drew any weapon, or that she threatened appellee with any violence; but the neighbor to whose house the parties went when the money was paid testified that she saw a revolver in appellant's pocket. This evidence is corroborative of appellee's statement. There was certainly some evidence to sustain the court's finding.
[1] Appellant contends that, notwithstanding appellee rescinded under duress, she cannot maintain her action against appellant without making a demand for the property, and without returning the money which had been paid to her by appellant, or offering to return it. It appears by the record that the money was paid to the justice of the peace at the time the action was commenced. This was sufficient; appellant having threatened the life of appellee, and compelled her to sign the rescission at the point of a revolver. In view of this rash conduct on the part of appellant, appellee...
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