Pearce v. Dill

• Decision Date: 14 December 1897
• Docket Number: 17,885
• Citation: 48 N.E. 788,149 Ind. 136
• Parties: Pearce et al. v. Dill
• Court: Indiana Supreme Court

48 N.E. 788

149 Ind. 136

Pearce et al. v. Dill

No. 17,885

Supreme Court of Indiana

December 14, 1897

From the Montgomery Circuit Court.

Affirmed.

Benjamin Crane, Albert B. Anderson, Charles Johnston and William H Johnston, for appellants.

G. W Paul and Henry D. Van Cleave, for appellee.

OPINION

Jordan, J.

By this action the appellee invoked the equity powers of the court to restore to her a certain amount of money which is charged to have been unlawfully diverted by her agent and trustee and placed to the account of appellant, Pearce, in the First National Bank of Crawfordsville, Indiana, a co-appellant herein. The complaint is in four paragraphs. The second substantially alleges that during the months of May, June and July, 1895, the plaintiff, Aravella Dill, was the owner of a certain amount of money, to wit, $ 5,000.00, on deposit in said bank in her own name, and that she had a pass book given her by the bank, showing her said deposits as entered therein, and that her husband, E. S. Dill, had the custody of said pass book as her trustee and agent; that the defendant Albert Pearce, had and occupied a room in the city of Crawfordsville, Indiana, for the purpose of gaming and wagering in margins and option deals, and for the purpose of betting and wagering on the market price of wheat, corn, oats, and other produce; that the defendant had his said room and place of business supplied with a telegraph instrument, blackboards, etc., and other paraphernalia usually belonging to a "bucket shop," for the purpose of gaming and wagering upon the market price of wheat, corn, oats, and other products; that in fact the room and place of business was a "bucket shop" operated for the purpose of gaming and wagering on the rise and fall of the market price of wheat and other cereals. It is further shown by the averments of the complaint that her said husband and agent, E. S. Dill, patronized the defendant, Pearce, in said business, by betting and wagering with him on the rise and fall of the market price of wheat, corn, oats, and pork; that Pearce would sell to said Dill, and the latter purchase from him, option deals in wheat, corn, oats, and pork, to be settled, and which in fact were settled, on the rise or fall in the future in the price thereof in the Chicago market; that in making said gaming deals with Pearce, said E. S. Dill, in order to pay the margins and losses therein, drew checks on the defendant, the bank, in favor of Pearce, and signed the plaintiff's name thereto as follows: "Aravella Dill, per E. S. Dill;" that these checks were delivered by Dill to Pearce and the latter endorsed the same and presented them to said bank and it honored each of them and gave Pearce credit in his account with the amount of each check and charged the amount against plaintiff's account in the bank, thereby transferring from her account or deposit in the bank to Pearce's account or deposit therein the sum of $ 4,700.00, all of which it is alleged was unlawful and without her knowledge or consent. It is further alleged that the plaintiff had authorized the bank to honor checks drawn by her said husband, E. S. Dill, in her name in the transaction of her business, and that the bank is made a party defendant for the reason that it has the custody of said money or funds. It is alleged that the checks were invalid and did not authorize the bank to transfer her money to the account of Pearce, and that each of the defendants knew that E. S. Dill was her agent, and that all of said deals by him in "margins" and "futures" were made in his own name and for himself, and that he had no right or authority from plaintiff to draw said checks for said purpose, and that the money so taken from plaintiff's account by the means aforesaid was taken from her without any consideration whatever, and without her knowledge or consent. It is also averred that Pearce is insolvent and that the sum of $ 2,677.38 of plaintiff's said funds is still in the bank credited to the account of the defendant, Pearce, and that the defendants have and hold said sum of money as her trustee and for her use and benefit, and that in justice and equity she has the right to have the same restored and transferred to her bank account; and she asks the court to compel the defendants to restore the money to her bank account, etc., and for all other proper and equitable relief. The other paragraphs of the complaint allege facts which are similar to those set forth in the second.

A trial by the court resulted in a finding in favor of the plaintiff, and it was adjudged and decreed that at the time this suit was commenced there was on deposit in the said bank, the sum of $ 2,677.77 in the name of the defendant Pearce, and of this amount the sum of $ 1,607.00 was wrongfully transferred from the bank account of the plaintiff to that of the defendant, Pearce, by means of the checks set forth in the complaint, and that the defendant bank was the custodian of said fund and money, and each of the defendants then held and had, and now has and holds said sum of $ 1,607.00 in trust for the plaintiff as for money had and received to her use, and the same belongs to her in her own right, etc.; and it was further ordered and decreed that the said defendants pay into court for the use of the plaintiff, said sum of $ 1,607.00 within ten days, etc. A separate motion for a new trial was filed by each of the defendants, and overruled, and each separately assign errors in this court.

No question is raised in regard to the sufficiency of the complaint, appellants basing their claims for a reversal of the judgment upon the insufficiency of the evidence, and other alleged erroneous rulings of the trial court. Accepting as we must, the evidence which the trial court deemed most worthy, and it sustains, among others, substantially the following facts: The appellee is the wife of E. S. Dill, and in the spring and summer of 1895, at different times, she deposited in her own name in the First National Bank of Crawfordsville, Indiana, money owned and held by her to the amount of $ 5,000.00 and over. At the time she opened her account with the bank, it was understood between her and the bank that the latter might honor checks drawn by her husband, E. S. Dill, in her name. She received a pass book from the bank, which she placed in the custody of her husband, who was acting as her agent in transacting her business, and as such he had authority to draw checks on her deposits in her name, for her use. Appellant Pearce operated and carried on in the city of Crawfordsville, Indiana, what is commonly known and denominated a "bucket shop" and was engaged in dealing in "margins," "futures" and "options" in wheat, corn oats, and pork. The deals made by persons who patronized Pearce in his said business depended upon and were settled on the future rise or fall of the market price of the products sold and purchased, at the city of Chicago, Illinois, at the time fixed for their delivery. No grain or other products were delivered by Pearce to his customers, nor were any sold or purchased with such intention. After Mrs. Dill deposited her money in the bank, her agent, E. S. Dill, transacted and carried on with Pearce a series of deals by buying "options" or "futures" in wheat, corn, oats, and pork. Dill had no use for any such products, and it was understood by him and Pearce, and so intended by both, that no wheat or other products sold by Pearce to Dill were in any...