Woods v. Shearer

• Decision Date: 02 July 1914
• Docket Number: 8305
• Citation: 105 N.E. 917,56 Ind.App. 650
• Parties: WOODS v. SHEARER ET AL
• Court: Indiana Appellate Court

105 N.E. 917

56 Ind.App. 650

WOODS v. SHEARER ET AL

No. 8305

Court of Appeals of Indiana

July 2, 1914

From Superior Court of Marion County (84,196); Charles J. Orbison Judge.

Action by Ella Shearer against Cora Woods and another. From a judgment for plaintiff, the defendant named appeals.

Affirmed.

Groninger & Groninger, for appellant.

Thomas D. McGee, Edward D. Reardon and James M. Drew, for appellee.

OPINION

HOTTEL, J.

Ella Shearer, hereinafter referred to as appellee, brought this action against appellant and her coappellee to recover possession of certain household goods and personal property alleged to have been unlawfully and fraudulently obtained from her. The complaint was in two paragraphs. The second paragraph is the usual complaint in replevin. The first paragraph, in addition to containing the averments necessary and usual in a replevin action, averred in detail facts showing how the possession of the property in question was obtained from appellee, viz., that the appellant and appellee Tongret, conspiring to cheat and defraud appellee out of her property, made certain false and fraudulent representations whereby they induced appellee to accept as payment therefor certain stock that was worthless; that appellee offered to rescind, tendered back the stock so obtained by her and demanded the return of her property, etc. Appellant filed an answer in general denial. Appellee Tongret defaulted. The cause was submitted to the court for trial and it found for appellee and against appellant and said Tongret and rendered judgment awarding the possession of said property to appellee, together with one cent damage, etc. Appellant's motion for a new trial was overruled and this ruling is the only error assigned.

The grounds of the motion for a new trial relied on for reversal are those which charge that the decision of the trial court is contrary to law and not sustained by sufficient evidence. It is in effect conceded that appellant obtained possession of the goods in controversy by virtue of a purchase in which she gave in payment for such goods, 40 shares of stock of $ 10 each (face value) in a corporation known as "The Bond and Realty Company". It follows therefore that appellant's obtaining possession of this property in the first instance was not wrongful in the sense contemplated by § 1330 Burns 1914, § 1266 R. S. 1881, authorizing an action in replevin. Jarrett v Cauldwell (1911), 47 Ind.App. 478, 480, 94 N.E. 790. Such a suit is a possessory action and it was incumbent on appellee to show her right to possession of the property sued for at the time her action was commenced. Jarrett v Cauldwell, supra. If, however, the contract, under which such possession was obtained, was tainted with fraud such contract was voidable at the election of appellee, and she could render appellant's detention of the property in question unlawful, under said section of the statute, by an offer to rescind the contract, viz., by an offer to restore the property she had received thereunder and a demand for her own property. Jarrett v. Cauldwell, supra, and authorities cited. It appears therefore that before appellee was entitled to recover in this case she had to show that the property in question was obtained in the first instance by appellant's fraudulent representations, and that the possession thus obtained, though not wrongful when obtained, was rendered unlawful because of appellee's offer to restore and turn back that which she had received, and her demand for that which she had given in exchange. She would, however, be relieved from an offer to restore, if the property received by her in exchange for that given by her was worthless and of no value, to either party, or if, on account of some act of appellant, restoration was rendered impossible or unnecessary. Cates v. Bales (1881), 78 Ind. 285, 288, 289; 35 Cyc. 149, 150, and cases cited in notes; 21 Am. and Eng. Ency. Law 84-87, and ca...