Muir v. Robinson
| Decision Date | 28 June 1933 |
| Docket Number | No. 26349.,26349. |
| Citation | 205 Ind. 293,186 N.E. 289 |
| Parties | MUIR et al. v. ROBINSON. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Hendricks Circuit Court; Zimri E. Dougan, Judge.
Action by Oscar R. Muir and another against Edgar W. Robinson, in which defendant filed a cross-complaint. From a judgment for defendant on the cross-complaint, plaintiffs appeal.
Transferred from Appellate Court under section 1357, cl. 2, Burns' Ann. St. 1926.
Affirmed.
Superseding opinion in 177 N. E. 341.
George G. Rinier, of Indianapolis, and Clark & Kahl, of Danville, for appellants.
Carl Humble, of Indianapolis, for appellee.
Appellants brought an action against appellee their complaint alleging in substance that on the 15th day of October, 1926, appellants purchased of appellee certain described real estate in Marion county, Ind.; that a warranty deed was on said date executed and delivered by appellee to appellants by which the appellee intended to convey to said appellants the said real estate; that by mutual mistake of the parties such real estate was erroneously described in the deed so executed and delivered; that said deed was received and accepted by appellants, they believing it contained a correct description of the real estate intended to be conveyed; that on the discovery of the mistake appellants demanded of appellee that said mistake be corrected, and presented to him a deed with the correct description, and requested and demanded that he sign, acknowledge, and deliver to appellants such deed; that appellee refused to so do. The prayer of the complaint was that the said deed made by appellee be reformed and a commissioner appointed to convey the said real estate by its correct description to appellants, for costs and all proper relief. This action was put at issue by the parties, and the appellee, while the case was pending, filed what he denominates “his cross-complaint” in the cause wherein he alleged in substance that on the 1st day of September, 1926, he was the owner of the real estate that is described in appellants' complaint, and on said day employed appellant Oscar R. Muir, as his agent, to sell or trade the same for him for the sum of $4,000, agreeing to pay the said Muir the sum of $200 to “honestly and skillfully” serve him as such agent in procuring “a good sale or trade for said property”; that said plaintiff (appellant Oscar R. Muir) was then engaged in the real estate business in the city of Indianapolis, Ind., and knew the value of real estate and was capable of serving appellee in such matter; that appellee was ignorant of the values of real estate, and unable physically and mentally to look after his interests and protect himself in a deal or trade; that on account of his own disabilities, as well as on account of the ability, knowledge, and skill of appellant Oscar R. Muir, appellee employed him as his agent; that said employment was accepted with full knowledge of the facts and reasons for same, and said appellant agreed to honestly serve appellee in making a sale or trade of appellee's real estate; that afterwards said Muir told appellee he had found a good trade for him, and that he had induced the owner of certain real estate located in Marion county, Ind., and in Tremont Gardens addition to agree to trade such real estate, which had a value of $3,000, for the property of appellee, he (appellee) to be allowed the sum of $4,000 for his property, each property to be subject to the liens of the mortgage thereon, and the difference to be paid to appellee in cash, and that said trade would be a good trade, and a bargain; that appellee had no knowledge of the value of said real estate or of real estate in said locality, but had confidence in the integrity and judgment of his agent, Oscar R. Muir, and relied upon the statements and representations made, and believed same to be true, and left the matter to the judgment of his agent, and told him he was depending on his judgment and advice; that in truth and in fact said real estate in Tremont Gardens addition was owned by appellants, and they had “plotted and planned and conspired together” to misrepresent the facts to appellee and to impose upon his confidence in his agent for the purpose of misleading, deceiving, cheating, and defrauding appellee, and that they did so do; that appellee was ignorant of the facts, and relied upon the statements of appellant Oscar R. Muir, and believed them to be true, and believed his said agent was working in his interest as he had been employed to do; that appellee was misled, and was thereby induced to sign a certain written proposition to make said trade and exchange of properties, without knowledge on his part that appellants were the owners of the property for which he was trading; that, after appellee signed said written proposition, appellant Oscar R. Muir accepted same in writing, and that appellee did not know until the acceptance was made that appellants were the owners of such property; that appellants, after the acceptance of said written proposition of appellee, told appellee and represented to him that he was getting a good trade, and threatened to sue appellee if he did not convey said real estate owned by him to appellants; that appellee was still ignorant of the value of appellants' real estate and relied on the statements and representations made, and believed them to be true, and was induced and coerced into carrying out the contract evidenced by the written proposition and its acceptance; that in truth and in fact the said property of appellants was not worth more than $1,500, and appellants well knew said fact at the time of said trade and exchange of properties. Damages for $2,000 was prayed. An answer of general denial to this “cross-complaint” was filed by appellants.
Appellants herein, after the issues were closed on both the complaint and “cross-complaint,” and on the day of trial, asked and were granted leave to withdraw the answer of general denial filed by them to the cross-action filed by the appellee and such answer was withdrawn. Appellants then filed the following motion: “The plaintiffs move the court to strike from the files in this action the cross-complaint of the defendant, Edgar W. Robinson, for the reason that the plaintiffs' action is a suit in equity to reform a deed and the defendant's cross-complaint is an action for damages arising out of tort and is not a proper matter to be litigated in this case and therefore cannot be presented by way of a cross-complaint.”
This motion was overruled by the court, and the appellants duly excepted. Plaintiffs (appellants) then dismissed their complaint, and the “cross-complaint” was submitted for trial to the court, resulting in a decision and judgment in favor of appellee in the sum of $1,200. Appellants filed motion for new trial, which was overruled, and appellants at the time each excepted.
It is stated in appellants' brief that “upon date of trial the appellee executed and delivered to appellants a deed correcting the erroneous deed,” and further that, after the overruling of the motion to strike from the files the “cross-complaint” of appellee, appellee “gave appellants a deed of correction which left nothing to try on the complaint and the complaint was dismissed.” Appellee in his testimony at the trial testified that there was an error in the first deed he delivered to appellants, and that on the morning of the day of trial he gave another deed for the correction of that error.
Errors assigned question the correctness of the court's actions in overruling the motion of appellants to strike out the “cross-complaint” of appellee and in overruling the motion for a new trial.
A consideration of the first question calls for a construction of section 373, Burns' Ann. St. 1926, which provides that: “A counter-claim is any matter arising out of or connected with the cause of action which might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand.”
The proper construction to be given to this limitation in the definition of a counterclaim has given rise to much litigation. No fixed rule can be established by which it can be determined whether the particular matter pleaded is so nearly connected with the cause of action as to fall within the meaning of the statute. It was said in the case of Excelsior Clay Works v. De Camp (1907) 40 Ind. App. 26, 80 N. E. 981, that in construing the meaning of the above statute the following section, being section 374, Burns' Ann. St. 1926, should also be considered and the two construed together. Said section provides: “If any defendant personally served with notice omits to set up a counter-claim arising out of the contract or transaction set forth in the complaint as the ground of the plaintiff's...
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