Smith v. Roseboom

• Decision Date: 17 May 1894
• Docket Number: 1,207
• Citation: 37 N.E. 559,10 Ind.App. 126
• Parties: SMITH v. ROSEBOOM ET AL
• Court: Indiana Appellate Court

37 N.E. 559

10 Ind.App. 126

SMITH v. ROSEBOOM ET AL

No. 1,207

Court of Appeals of Indiana

May 17, 1894

From the Clinton Circuit Court.

Judgment reversed, with instructions to sustain the demurrer to each paragraph of the complaint.

T. H Palmer, W. F. Palmer and J. C. Rogers, for appellant.

W. R Moore and W. H. Peter, for appellees.

OPINION

ROSS J.

The appellees brought this action against the appellant to rescind a contract which had been partially executed.

The first two errors assigned by the appellant on this appeal call in question the correctness of the court's ruling in overruling the demurrer to the first and second paragraphs of the complaint, the first paragraph of which, omitting the caption, reads as follows:

"The above named plaintiffs complain of the above named defendant, and say that heretofore one Nathan E. Mills was the agent of plaintiff, Daniel M. Roseboom, to exchange for real estate a certain stock of goods which was situated at the time in the town of Tipton, Indiana; that said Mills exchanged said stock of goods for certain lands in the State of Illinois, and certain real estate in the city of Indianapolis, Indiana; that at the time of making said exchange, and for the purpose of inducing said Mills to make said exchange and trade, defendant, John A. Smith, caused certain lots in the city of Indianapolis to be shown to said Mills, and represented the same as belonging to said Smith; that after an examination of said lots said Smith and Mills agreed that said lots should be taken by said Roseboom in part payment for said stock of goods at the agreed price of three thousand dollars ($ 3,000); that said lots shown to Mills were of the value of three thousand dollars ($ 3,000), and are described as follows, to wit: Lots No. 11, 12, 13, 14, the alley between 13 and 14, and that part of Brett street lying next to and adjoining the alley and lots No. 11, 12, 13 and 14, Burr & Miller's subdivision of lots 7, 8 and 9 in H. T. and Almira D. Brook's addition to the city of Indianapolis; that said goods were transferred to said Smith, and deed made by said defendant to the Illinois land at the time of the transfer of said stock of goods, and that afterwards said Smith, by warranty deed, conveyed to plaintiffs the following described real estate, to wit: Lots No. 71, 72, 73, 74, 75 and 81 in C. S. Glenn's subdivision of lots No. 2, 3, 4, 5 and 6 in H. T. and Almira D. Brook's addition to the city of Indianapolis, Indiana; that said Mills and these plaintiffs being wholly ignorant of the location of said real estate by description, relied upon the statements of said Smith; that the land described in said deed was the lots pointed out to him before said trade was made as above, whereas in truth and in fact the land described in the deed does not describe the land which was pointed out to said Mills, which said Smith well knew; that the land so pointed out, and that which plaintiffs and said Mills contracted for, is north of the land described in the deed to Roseboom about eight hundred feet (800), and is of great value, to wit: three thousand dollars ($ 3,000), while the lots described in the deed to Roseboom are of but little value, worth not more than five hundred dollars ($ 500). Plaintiffs Daniel M. Roseboom and Nancy J. Roseboom say that they have been damaged in the sum of two thousand five hundred dollars ($ 2,500), and that he brings into court the deed made by said Smith and wife, and tenders the same back to them and offers to reconvey the same to defendant."

Counsel for appellant insist that this paragraph is insufficient for many reasons, which may be summarized as follows: First, because there is no allegation that the stock of goods transferred to appellant belonged to the appellees or either of them, or that they had any interest therein. Second, "there is no allegation that Smith obtained title to the stock of goods by reason of his trade with Mills, and there is no allegation that either Roseboom, or Mills as his agent, transferred said stock of goods to Smith." Third, that it is not alleged that the appellant did not convey to appellees the property which was shown to Mills and which they agreed to accept as a part of the consideration for the stock of goods; and, fourth, there is no allegation that Mills was the agent of Nancy J. Roseboom, or that Smith had any relations or contract with her."

We will consider first, the fourth, or last, objection made to this paragraph, namely: Does it state a cause of action in favor of both Daniel M....