Sachs v. Blewett

• Decision Date: 14 April 1931
• Docket Number: No. 13799.,13799.
• Citation: 175 N.E. 676
• Parties: SACHS et al. v. BLEWETT.
• Court: Indiana Appellate Court

175 N.E. 676

SACHS et al.

v.BLEWETT.^*

No. 13799.

Appellate Court of Indiana, in Banc.

April 14, 1931.

Appeal from Superior Court, Marion County; Wm. O. Dunlavy, Judge.

Action by Effie Blewett against Max Sachs and others. Judgment for plaintiff, and defendants appeal.

Affirmed.Saul I. Rabb and Richard L. Ewbank, both of Indianapolis, for appellants.

Telford B. Orbison, of Indianapolis, for appellee.

BRIDWELL, J.

Appellee brought action against the appellants for damages. Her complaint was in two paragraphs, and the answer filed thereto was in general denial. The trial was by a jury, and resulted in a verdict in favor of appellee for the sum of $2,800. Motion for a new trial was filed, and, pending the court's ruling thereon, the appellee filed her remittitur for the amount of $900. Judgment rendered in favor of appellee against both appellants for $1,900, and motion for new trial overruled.

Errors relied upon for reversal are as follows: (1) Overruling appellants' demurrer to the complaint; (2) overruling appellants' motion for a new trial.

The complaint alleges, in substance, that on the 11th day of June, 1928, and at all times mentioned in the complaint, unless otherwise stated, appellee was the owner of a brick business building and a frame house located on the northwest corner of Twenty-Seventh street and Northwestern avenue, in the city of Indianapolis, state of Indiana, and a description of the real estate upon which said buildings are located is given; it is then alleged that appellee employed a licensed auctioneer to sell the property at auction; that due advertisement was made of the fact that said property would be sold at auction, with the time and place of sale given; that said auction sale was held; that, before the bidding was opened, the auctioneer announced in detail the terms upon which said property would be sold; that among other things it was announced by the auctioneer that there was a $12,000 mortgage on said property, which was held by the Railroad Men's Building & Savings Association, which mortgage had been reduced to approximately $9,300, which the purchaser would have to assume; that the successful bidder or purchaser would be immediately required to make a deposit with him or plaintiff, of 10 per cent. of the purchase price of said property as good-faith money and as part payment and that the balance thereof would have to be paid to plaintiff upon final completion of the transaction, delivery of title and sufficient abstract; that after the bidding had been opened a bona fide bid of $12,100 was made for said property by one John Hank; that thereupon the defendants (appellants) fraudulently made a bid of $12,150 for said property; that the first bidder then made a bona fide bid of $12,200; that thereafter defendants fraudulently made a bid of $12,225; that no other bids were made, and the auctioneer declared the property sold to the defendants for said sum of $12,225, the highest bid received; that, immediately after said property had been declared sold to said defendants, plaintiff demanded that they make the 10 per cent. deposit in accordance with the terms of the auction; that thereupon defendants fraudulently represented to plaintiff that they did not have the money with them with which to make the deposit required and did not have the money in bank so that a check could be given as said deposit; that defendants were then informed that a $500 deposit would be acceptable in lieu of the 10 per cent. deposit; that defendants then told plaintiff that they knew they had bought said property, and fraudulently represented to her that, if she would come to their place of business at 2 o'clock p. m. of that day they would pay her the said $500 deposit and would thereafter pay her all the money that was due her as soon as final papers could be drawn up and the transaction closed; that plaintiff relied on said representations and believed them to be true and consented to wait until said time for the payment of said deposit money; that plaintiff did go to defendants' place of business, but defendants fraudulently represented to plaintiff that they had not been able to raise the money, and asked her to return the next morning at 11 o'clock a. m. and they would pay her the said deposit money of $500; that plaintiff returned at 11 o'clock the next morning, and on several occasions thereafter, at the request of defendants, for the purpose of collecting the money due her and also closing the transaction, but on each occasion defendants made fraudulent excuses as to why they were unable to carry out their promises, at the same time fraudulently representing to plaintiff that they intended to pay her in accordance with the terms of the auction sale; that thereafter they finally told her that they did not believe the property was worth the sum of $12,225 and that they would not pay her this amount, but that the only amount they would pay would be the sum of $10,750; that the defendants attended said auction sale for the fraudulent purpose of blocking the sale of said property and to make fraudulent bids therefor in order to prevent the sale thereof to any honest bidder; that they held themselves out to be bona fide bidders for the purchase of said property; that all bids made by the defendants and each of them were fraudulently made with the intention of cheating and defrauding plaintiff and with no intention to comply with their said bids and with the fraudulent purpose of preventing the sale of said property; that the bids made by defendants at the auction sale were fraudulently made and were false, in that defendants had no intention of paying the sum bid in the event that they were the successful bidders, as they at the time well knew; that plaintiff, as well as her agent, the auctioneer, were ignorant of the fact that said bids of the defendants were fraudulent and false, but believed them to be true, and, relying on said bids, declared defendants to be the successful bidders; that she was ignorant of the falsity of the statements, representations, and promises of the defendants and relied on them; that at all times she was ready to comply with the terms of said auction sale as announced by the auctioneer, and ready and willing to deliver a good and sufficient warranty deed, together with a merchantable abstract of title for said property to said defendants; that the said John Hauk was a bona fide bidder at said auction sale and was willing and ready to purchase said property for his said bid of $12,200; that, had it not been for the fraudulent bid of defendants, the said Hauk would have been declared the successful bidder, and the said property would have been sold to him for the said sum of $12,200; that, after defendants had been declared the successful bidders and said property knocked down to them, the said Hauk refused to purchase said property for said sum; that, after defendants refused to pay plaintiff in accordance with the terms of the auction sale, she made a diligent and unsuccessful effort to sell said property and to obtain therefor at least the sum of $12,200; that finally she was forced to hold a second auction sale on the 29th day of June, 1928; that at said sale said property was sold in conformity with the law to the highest bidder; that the highest bidder was the said John Hauk, and his bid was $10,350; that the said Hauk assumed the said mortgage, which had been reduced to $9,166.65; and paid to plaintiff $1,183.35, in cash, for the said property; that, because of the fraudulent conduct and representations of defendants, plaintiff was forced to part with her said property for the sum of $10,350, instead of the sum of $12,200 for which it would have sold had it not been for such fraudulent conduct and representations; that because of such fraudulent conduct and representations she was forced to expend the sum of $400 in paying the expenses of the second auction sale, the further sum of $70 interest on said mortgage from June 11 to June 29, 1928, and attorney fees in the sum of $200 in connection with the sale of said property to the said Hauk; that she would not have been required to pay said sums had said property been sold at the first auction sale held on the 11th day of June, 1928.

The two paragraphs of the complaint contain practically the same allegations, with the exception that the second paragraph further alleges that the appellants conspired to cheat and defraud appellee believing that, if they were able to prevent any honest bidder from purchasing the property and to have themselves declared the successful bidders, they would be able to obtain said property for a sum much less than the amount of their bid at said auction sale, because of the fact that it was necessary for appellee to immediately dispose of said property in order to prevent foreclosure.

The demurrer is to the complaint and not to its separate paragraphs, and is for the reason that the complaint does not state facts sufficient to constitute a cause of action. In the memorandum, the sufficiency of the complaint is challenged on the grounds, that, stripped of its conclusions, it does not state any facts at all; that the alleged fraud and fraudulent intent is not set out; that it is not shown that an agreement in writing, signed by the defendants, was entered into for the purchase of the real estate; that it is not shown that any agreement or memorandum for the sale and purchase of the said real estate was ever signed by the defendants.

[1] Appellants forcefully contend that, since they did not sign any memorandum in writing, no liability exists, as the bid made was for the purchase of real estate, and invoke the protection of the statute of frauds. This action, however, is not an action on contract, nor for the recovery of damages for the breach of a contract, and the theory advanced that there can be no liability in tort because there is no liability in contract is not...