APPEAL
from Carroll Circuit Court, HON. JAMES M. DAVIS, Judge.
Affirmed.
Statement
of case by the court.
The
petition in this case is as follows: " Plaintiff states
that on or about the fifteeth day of March, 1879, he employed
defendant to purchase for plaintiff's use, an engine
boiler, and other milling machinery, from the Wardyke and
Marmory Company of Indianapolis, Indiana. That by the terms
of the contract, defendant was to purchase and pay for said
machinery, and plaintiff was to execute to defendant his note
for the purchase price thereof, due one year after date, with
ten per cent. compound interest per annum until paid, from
date, the same to be secured by deed of trust on certain real
estate and machinery, and the mill in which same was placed.
That on the third day of March, A. D. 1879, defendant
represented to plaintiff that he had purchased said machinery
at and for the price and sum of thirty-one hundred and fifty
($3150) dollars, and desired plaintiff to execute his note
and deed of trust. Therefore, in accordance with said
agreement, that plaintiff relying on said representations
executed and delivered to defendant his note for said sum of
money, and deed of trust on the real estate, mill, and
machinery, as agreed on, to secure said note. That plaintiff
has paid to defendant the full amount of said note and
interest, the last payment having been made on said debt
between March 19, 1881, and April 26, 1881, said note having
been renewed on the fourteenth day of August, 1880, for a
balance then due of $1,965.67, and said last payment having
been made on said renewal note. Plaintiff alleges and charges
said representation of defendant, as to the amount he had
paid for said machinery, was false and fraudulent. That, in
truth, and in fact, defendant only paid therefor the sum of
$2,750, and that, at the date of the execution of said note
and payments thereon, he was ignorant of the fact that
defendant had deceived him as to the amount paid for said
machinery. Wherefore, plaintiff says that he is entitled to
have and recover of defendant the said sum of four hundred
dollars, the difference between the amount actually paid by
defendant and the amount paid by plaintiff to defendant, with
ten per cent. interest thereon, from date of said note, for
which sum, together with the interest, he asks judgment, and
all other relief."
The
answer denies the allegations of the petition, except as said
answer admitted. The answer avers that the defendant bought
the machinery on his own account, and not as the
plaintiff's agent, and admits that the defendant paid
$2,750 for said machinery; it also avers that the defendant
sold the said machinery for $3,150, for which sum the latter
executed his note and deed of trust according to agreement
it further avers that the plaintiff paid the note aforesaid
voluntarily, with full knowledge of all the facts, and in
settlement of the whole transaction.
The
reply is a general denial of the new matter set up in the
answer.
The
evidence is not contained in the bill of exceptions. It
simply appears, from the bill of exceptions, that the
plaintiff offered evidence tending to prove the allegations
in the petition; that the defendant offered evidence tending
to support the allegations in his answer, and that " the
plaintiff also offered testimony tending to prove that at the
time he paid said alleged balance of four hundred dollars,
the deed of trust on his mill and machinery, and the real
estate upon which the same is situated, had been placed in
the hands of Hiram Jaqua, trustee, with instructions to
advertise and sell the same unless the debt was paid, and
that upon the representation that it would be better for him
to pay said balance, he thereupon paid it."
The
case was tried by the court sitting as a jury. No
declarations of law were given in the case. The court refused
to give the following declarations of law, asked by the
plaintiff:
" 1. If the court find, from the evidence, that the four
hundred dollars in issue, or any part thereof, was
fraudulently or wrongfully claimed by defendant, and included
in the note and deed of trust, when, in fact, the defendant
had only paid $2,750, and not $3,150, for the machinery, and
that plaintiff paid said alleged excess after the deed of
trust and note had been placed in the hands of the trustee,
with instructions to advertise and sell said property, unless
the same was paid, and that plaintiff thereupon paid such
excess, the verdict and finding should be for the plaintiff.
Although, the court may further find, from the testimony,
that at the time of the payment he had knowledge or
information of such overcharge, and that upon a conversation
with the trustee, who advised him to pay it, and agreed to,
and did, thereupon, pay such excess."
" 2. That if plaintiff paid said alleged excess upon a
threat of the sale of the mill, machinery, and real estate,
upon which the same stood, under a deed of trust which
defendant held thereon, to secure said indebtedness, and was
about to carry such threat into execution, then the verdict
and finding should be for plaintiff for the amount which the
court may find that defendant overcharged plaintiff, and
included in said deed of trust, if the court further finds
that the transaction was, in fact, a loan of the money, and
not an actual sale of the machinery by defendant to
plaintiff."
" 3. If the note and deed of trust, in evidence, were
obtained by false and fraudulent representations made by
defendant as to the amount he paid for said machinery, and
plaintiff paid said alleged excess in order to release his
mill, machinery, and real estate from the lien thereon, and
from a threatened sale thereunder, then the payment was
involuntary, and the verdict will, and should, be for the
plaintiff for the amount of said excess."
The
court found for the defendant, and rendered judgment
accordingly. The plaintiff has appealed to this court.
J. W.
SEBREE, and HALE & SONS, for the appellant.
I. If
there was fraud in the transaction, and no duress, legal or
moral, money voluntarily paid can be recovered back. Or, if
the facts show that the payment was involuntary, or
under moral or legal duress, plaintiff ought to recover.
Defendant was armed, not only with apparent, but real
authority, under the deed of trust, to take possession of and
sell plaintiff's...
