Miller v. Miller

• Decision Date: 03 March 1892
• Citation: 4 Ind.App. 128,30 N.E. 535
• Parties: MILLER v. MILLER.
• Court: Indiana Appellate Court

4 Ind.App. 128

30 N.E. 535

MILLER

v.MILLER.

Appellate Court of Indiana.

March 3, 1892.

Appeal from circuit court, Miami county; J. M. BROWN, Judge.

Action by Jacob P. M. Miller against Isaac Miller to recover the value of certain wheat stolen from plaintiff, and sold to defendant. Defendant had judgment, and plaintiff appeals. Affirmed.

Walker & McClintic, for appellant. Mr. Farrars, for appellee.

ROBINSON, C. J.

The appellant was the plaintiff below, and commenced this action against the appellee. The complaint alleged that one Andrew Johnson feloniously stole and carried away 78 bushels and 5 pounds of wheat, the property of the appellant, and took said wheat to the mill of the appellee, who bought said wheat from him, said Johnson, and paid him therefor the sum of $67.15; that before suit appellant demanded said wheat, which was refused, and also demanded payment for the same in said sum of $67.15, the said wheat being worth that sum, which appellee also refused. Wherefore, etc. The appellee answered in two paragraphs. The appellant demurred to each paragraph of the answer, which was overruled, and exception saved. Appellant then filed a reply. The cause was tried by the court, with a finding for the appellee, and over a motion for a new trial judgment was rendered on the finding. Under the assignment of errors, it is alleged that the court erred in overruling the demurrer to the first and second paragraphs of the appellee's answer, and in overruling appellant's motion for a new trial. It is assumed in argument by the counsel for the appellant that the court erred in overruling the demurrer to the first and second paragraphs of the answer because there is no denial of the theft of the wheat, and for other reasons it does not state a defense to the action. The answers do not materially differ, and allege substantially the following facts: That the appellee was a merchant miller in the city of Peru, Ind., and as such engaged in the manufacture of flour, feed, middlings, etc.; that on the 24th day of October, 1885, appellant was at the appellee's mill, and bargained with him for two tons of middlings, at the price of $24, in payment of which he would send some wheat he had to spare to appellee; that the appellee could take the price of the middlings out of the wheat, and pay the appellant the difference; that, pursuant to said bargain and agreement, appellant, on the 27th day of October, 1885, sent by his agent and servant, the said Andrew Johnson, being the same person mentioned in the complaint as having stolen the wheat sued for in this action; that said Johnson drove the appellant's horses hitched to his wagon to appellee's mill, with 39 43-60 bushels of wheat, of the value of $34.15; that the appellee received said wheat under the agreement previously made with the appellant, and delivered to said Johnson for the appellant said two tons of middlings and $10.15 cents cash, all of which said Johnson properly delivered to the appellant; that on the 30th day of October, 1885, said Johnson, as appellant's agent and servant, with appellant's team, took to appellee's mill 71 30-60 bushels of wheat, which appellee bought, and paid the sum of $61.45 to said Johnson as such agent and servant, who paid the same to the appellant; that afterwards, in pursuance to said contract, as appellee understood and believed it to be, to-wit, on the 2d day of November, 1885, said Andrew Johnson, appellant's agent and servant as aforesaid, did, with appellant's team and wagon, recognized and known as such by appellee, deliver to the appellee at his said mill 78 5-60 bushels of wheat, alleged by appellant to have been stolen, and being the same quality and kind of wheat as the said two preceding loads, for which appellee, without notice or objection of any kind by appellant, paid said Johnson the sum of $67.15 in good faith, believing at the time of buying said wheat and paying therefor that said Johnson was still the agent and servant of the appellant, as he had been in hauling and selling the preceding loads; that in buying said last wheat appellee was ignorant of any change in the relation of master and servant before that time existing between said appellant and said Johnson; that the...