Lucas v. Rader

• Decision Date: 06 June 1902
• Citation: 29 Ind.App. 287,64 N.E. 488
• Parties: LUCAS v. RADER.
• Court: Indiana Appellate Court

29 Ind.App. 287

64 N.E. 488

LUCAS

v.RADER.

Appellate Court of Indiana.

June 6, 1902.

Appeal from superior court, Marion county; James M. Leathers, Judge.

Replevin by Francis C. Lucas against John H. Rader. From a judgment for defendant, plaintiff appeals. Reversed.

James Stevenson, for appellant. J. H. Rader and F. F. Moore, for appellee.

COMSTOCK, J.

Appellant (plaintiff below) brought this action in replevin to recover from the appellee a set of the Indiana Supreme and Appellate Court Reports. Appellant gave bond and took possession of the books. The defendant answered by general denial. The cause was tried by jury, and verdict returned in favor of appellee,-that he was entitled to the possession of the property described, and fixing their value. With the general verdict, answers to interrogatories were returned. A motion for judgment on the answers to interrogatories notwithstanding the general verdict was overruled, and judgment rendered in accordance with the general verdict.

Appellant relies for a reversal of the judgment upon the reason (set out in his motion for a new trial) that the verdict is not sustained by sufficient evidence. The following is a fair summary of the evidence: Appellant, a practicing attorney in the city of Indianapolis, desiring to engage in other work, in the city of New York, before leaving for that city left in the care and office of Patrick J. Carlin, another practicing attorney in Indianapolis, the set of law books mentioned in plaintiff's complaint, stating before leaving for New York to the said Patrick J. Carlin that he would sell the law books if he could get his price, and that, if he (Carlin) should find a prospective buyer, to notify him by letter, and he would name a price, and that he did, in a letter to Carlin, name various prices, the lowest being $280, and the highest being $350, and that at no time had the said Carlin authority to name a price upon said books, or to dispose of the same otherwise than as directed by the said appellant; that the said Carlin was an attorney regularly engaged in the practice of law in the city of Indianapolis, and not in any way engaged in the buying and selling of law books; that he only took possession of the books as a matter of accommodation to the appellant until such time as the appellant might otherwise dispose of them. Both Carlin and appellant testify that Carlin was not the agent to sell or name a price for the books, but only had possession as a bailee, and that Carlin testified that he never sold or delivered the said books to the appellee, or approved or confirmed the sale afterwards. And both appellant and Carlin testified that they have at no time since approved of the sale to appellee. That Carlin had in his office at the time a law student by the name of Brennan, to whom he was indebted in the sum of $225, borrowed money, for which he had given his notes,-the said notes the said Brennan now holds against the said Carlin. Carlin testifies that he at one time directed Brennan to sell to the appellee his (Carlin's) books, and that he (Carlin) would take appellant's books. Brennan testifies that he was directed by Carlin to sell appellant's books to appellee, but not at the price he did actually sell them for, but that he made up the difference in the actual selling price to Carlin to make the amount that he testified that Carlin directed him to sell them for. Carlin denies that he told Brennan to sell the books. Brennan did, afterward, at Rochester, N. Y., give his check to Carlin for $15, but retained Carlin's notes, stating that Carlin now owed him nothing. Brennan, at the time that he sold appellant's books to the appellee, stated to and made affidavit to appellee that he represented appellant, and signed the bill of sale as the agent of the appellant, but afterwards, in his deposition, testified that he was only acting as the clerk and representative of Carlin, and not appellant. Brennan afterward, at the taking of Carlin's deposition, acted as the attorney and representative of the appellee, not as agent or attorney for the appellant, cross-examining Carlin when deposition was taken, which was afterwards introduced as evidence to support the appellee's claim. Appellee testified that he called upon the appellant, in the Stevenson Building, in answer to an advertisement in the Indianapolis Evening News, and that appellant then offered to sell him the said law books at $1.50 per volume; that this call was made about one year before he finally purchased the said books of Brennan. This call and price stated are denied by appellant. Appellee testified that he afterwards saw the books in Carlin's office, and tried to purchase them of Carlin; that Carlin stated that he had no authority to name a price on the books; that, as to the price, he would have to write to the appellant, as he changed his price at different times, and that he then had a letter from the appellant naming a different price from that offered by the appellee, and that he called there more than once with the same result, and that after Carlin...