Lewis v. Reed
| Decision Date | 03 December 1858 |
| Parties | Lewis v. Reed |
| Court | Indiana Supreme Court |
From the Elkhart Court of Common Pleas.
The judgment is affirmed, with 1 per cent. damages and costs.
R Lowry, E. Dumont and O. B. Torbet, for appellant.
Attachment suit by William S. Reed against Francis G. Lewis. Judgment below for the plaintiff.
It appears that Lewis was a non-resident of this state; that he was administrator of the estate of John C. Stauffer deceased; that said Stauffer, at his death, held a title-bond for a tract of land situate in Elkhart county, Indiana, on which he had made partial payment; that said Lewis procured an order from the Elkhart Court of Common Pleas for the sale of said title-bond in the course of administration; that he directed his attorneys, Lowry and Irwin, to negotiate the sale for him; that they undertook to do so, and entered into a written agreement with William S. Reed, they acting as agents for Lewis, for the sale to him of said title-bond, and received from him, as a first payment, 375 dollars. They did not have the bond in possession at the making of the agreement, and did not assign or deliver it to Reed, but agreed for its subsequent transfer to him. It turned out that in making the contract with Reed, they represented and sold to him the bond as being for a different tract of land from what it in fact was, and, hence, could not fulfill their agreement with him, by assigning to him a bond for the land described in their agreement. Reed, in this suit, sought to recover back the amount paid by him at the making of the contract. Lewis being a non-resident, the suit was commenced by attachment, and Lowry and Irwin, the agents of Lewis, to whom the money was paid, and who still had it in possession, were summoned as garnishees.
The defendant, Lewis, demurred to the complaint on two grounds--
1. That it showed that the Court of Common Pleas had no jurisdiction, because the title to real estate was in issue.
2. That the contract with Lewis was void, because an administrator could not appoint an agent.
The Court overruled the demurrer, and, the defendant refusing to answer further, judgment was rendered against him for the 375 dollars. He appealed to the Supreme Court.
The Court below then proceeded to examine the case of the garnishees, and finding that they had the money in their hands, as agents of Lewis, to whom they admitted they were to pay it, the Court gave the usual judgment in such case against them. From this judgment no appeal was taken.
It is very clear that the title to real estate was not in issue. The subject-matter of sale was not land, but a title-bond. No allegation is made in the complaint as to the title to land. The allegation is that a title-bond for a...
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