Ross v. Hobson
| Decision Date | 05 February 1891 |
| Docket Number | 14,621 |
| Parties | Ross, Administrator, et al. v. Hobson et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 8, 1891.
From the Clinton Circuit Court.
Judgment affirmed, with costs.
N. O Ross, for appellant.
F Cooper, J. O'Brien and C. C. Shirley, for appellees.
This action was brought by the appellees to rescind an executed contract. The complaint is in two paragraphs, which are not materially different.
The first paragraph alleges that the appellees were and are husband and wife; that the appellee, Jesse, was the owner of certain real estate situated in Howard county, Indiana; that on the 5th day of November, 1886, the appellant, George E. Ross, and one Oscar Chandler, who was in life when this action was brought (and a party defendant thereto) but since deceased, conspired and confederated together to cheat and defraud the appellees out of the title to said real estate, and pursuant to such fraudulent purpose and intention, met at the residence of the appellees upon the said real estate and represented to the said Jesse that the appellants, George E. and Martha J., were the owners of the undivided one-third interest in and to certain real estate in Cass county, Indiana, and the appurtenances thereto belonging, consisting of a building and apparatus therein for the propagation of chickens and other domestic fowls, the whole of said property belonging to the Logan Poultry Company, and the said interest of the said George E. and Martha J. being represented by forty shares of the capital stock of said company, of the par value of $ 50 each; that the business of the above named company was in successful operation, and was prosperous; that the stock of said company was worth in the market its full par value; that its tangible property had cost and was well worth $ 6,000; that said company was free from debt, and its property unincumbered; that immediately following the said representations, the said Ross and Chandler proposed to exchange the interest of the said George E. and Mary J., in said company as represented by said stock, for the said real estate of the said Jesse; that the appellees believing the said representations to be true, and relying thereon, and being deceived thereby, did on said day, in consideration of the sum of $ 100 in cash paid by said George E., and the delivery of said forty shares of stock, convey the said real estate so owned by said Jesse by warranty deed to said Chandler, who immediately executed a quit-claim deed therefor to said Martha J., who at the time was the wife of the said George E.; that the last named conveyance was executed without consideration, and without the knowledge of the said Martha J.; that at the time said representations were made, and said conveyance executed by the appellees, the said poultry company was wholly insolvent, and its property encumbered for more than its actual value, all of which was well known to the said George E. and said Chandler; that the business of the said company was not and never had been prosperous, and at the time said representations were made it had abandoned its business as a losing and worthless enterprise, and its stock was not worth the paper on which the certificates thereof were printed; that the residence of the appellees when said representations were made, and said deed executed, was thirty miles from the city of Logansport, the home of said company and its place of business; that the said George E. was a notary public, and although said conveyance was executed for his benefit, by his direction, that he as notary might take the acknowledgment, the conveyance was executed to said Chandler; that as soon as the appellees discovered the fraud they at once demanded a rescission of the contract, and offered to place the appellants in statu quo.
It also appears by proper averments that the consideration received by the appellees was tendered in court for the benefit of the appellants.
Demurrers were addressed to both paragraphs of the complaint and overruled by the court and exceptions reserved.
An answer in general denial was filed, and the appellant, Martha J., filed a cross-complaint, alleging a fee simple ownership of the Howard county real estate, and demanding that her title thereto be quieted, and that she recover the possession of said real estate.
The appellees addressed a demurrer to the cross-complaint, which was overruled, and thereupon they answered with a general denial.
The cause was submitted to a jury for trial, who returned a special verdict; and after unsuccessfully moving for a venire de novo, and for judgment on the special verdict, the appellants moved for a new trial, which latter motion was overruled, an exception saved, and judgment and decree rendered for the appellees.
The appellants assign errors jointly and severally.
The questions presented to which we need refer in this opinion arise out of the rulings of the court in overruling the demurrer to the paragraphs of complaint, and in overruling the motion for a new trial; the verdict of the jury was not defective in form, and for no other cause will a writ of venire de novo be awarded. Louisville, etc., R. W. Co. v. Hart, 119 Ind. 273, 21 N.E. 753; Bowen v. Swander, 121 Ind. 164, 22 N.E. 725; Hamilton v. Byram, 122 Ind. 283, 23 N.E. 795.
The complaint is not a model pleading, but we think the facts stated in each paragraph disclose a cause of action, and entitle the appellees to a rescission of the contract. One objection to the complaint is that it contains no allegation as to the value of the Howard county land. Such an allegation would have been highly proper, but it is not a necessary allegation. If the appellees had affirmed the contract after discovering the fraud alleged, and had brought an action for damages because of the fraud, then it would have been necessary for them to show the difference between the worth of the property they obtained under the contract when they received it, and what it would have been worth had the representations been true. Nysewander v. Lowman, 124 Ind. 584, 24 N.E. 355.
But as this is a suit in equity to rescind the contract which was executed by the parties, if the appellees are otherwise entitled to have undone all that was done because of the contract, the value of the real estate conveyed by them is a matter of no consequence, as a rescission only restores them to their former position.
That the real estate which the appellees conveyed to the appellant, Martha J., is of some value, clearly appears by the averments of the...
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