Shaw v. Avers

• Decision Date: 26 May 1897
• Docket Number: 2189
• Citation: 47 N.E. 235,17 Ind.App. 614
• Parties: SHAW ET AL. v. AVERS
• Court: Indiana Appellate Court

47 N.E. 235

17 Ind.App. 614

SHAW ET AL. v. AVERS

No. 2189

Court of Appeals of Indiana

May 26, 1897

From the Montgomery Circuit Court.

Affirmed.

M. M Bachelder, for appellants.

Jere West and George Harney, for appellee.

OPINION

HENLEY, J.

This action in the lower court was by the appellee against appellants. The complaint was in one paragraph.

Appellants' counsel discuss but one alleged error of the lower court. Under the oft repeated decisions of this court, the other errors, if any, assigned, but not discussed, are waived.

It is contended by counsel for appellants that the "trial court below erred in overruling appellants' motion requiring appellee to separate his complaint into paragraphs." No objection is made by counsel for appellee to the sufficiency of the assignment of errors.

We think it is necessary and essential to a proper understanding of the question involved and argued by counsel, to set out in this opinion a copy of the complaint under which such question arises. Omitting the formal parts, it is as follows:

"Plaintiff complains of the defendants and says, that on or about the 23d day of October, 1894, the defendants were the owners of a stock of merchandise, consisting of groceries, queensware and fixtures for conducting such a business, in the town of Ladoga in said above State and county, and that said stock of goods was of the probable value of $ 600.00. And plaintiff further avers that the defendants, by gross misrepresentations and by false and fraudulent means, represented to plaintiff that the said stock of groceries were of the value of $ 1,500.00, which statements and representations the defendants well knew were false, and that the said stock of goods were only of the value of $ 600.00.

"And plaintiff further avers he was not acquainted with such business and was unaccustomed to judge of the value of such articles and stock, and was ignorant of the true worth of the same, but that the defendants were accustomed to dealing in such articles and were skilled in such business and well acquainted with the value of the same. And plaintiff having great confidence in the defendants and relying on the representations made to him by them, was thereby induced to purchase a one-half interest in said stock of goods for $ 700.00, paying to the defendants $ 400.00 in cash and giving his promissory note for $ 300.00, secured by chattel mortgage on the one-half interest in said stock of goods, to be paid on the 24th day of April, 1895, and plaintiff further avers that he entered into the possession of said stock pursuant to their agreement and sale, and that after learning something of the nature of the said business, he learned of the fraud and deceit practiced by defendants on him, but relying on their statements that it would be adjusted when the mortgage became due, and relying on the statements that there were other goods due them from the wholesale houses he continued in said business with them.

"That on or about the 11th day of May, 1895, the defendants, by false allegations and fraudulent means, obtained from plaintiff the key to the storeroom where said business was conducted and forcibly and without plaintiff's consent locked the same and refused his admission to the same, but took the same and converted them to their own use.

"On account of said fraudulent sale and misrepresentations and forcible detention of property, and for the loss of his time and money, the plaintiff has been damaged in the sum of one thousand dollars.

"Wherefore, plaintiff demands judgment for one thousand dollars, and other relief."

It will be seen by the complaint and the prayer for relief thereunder, that the pleader manifestly intended that the same should be an action for damages on account of fraudulent representations in regard to the property bought. That...