McGirr v. Sell

Howk, J. In this action, the appellee, as plaintiff', sued the appellant, as defendant, in the court below, to recover damages for the alleged unlawful taking and conversion, by the appellant, of two barrels of whiskey, the property of the appellee, of the alleged value of three hundred dollars. Appellee’s complaint was in three paragraphs; and the issues joined thereon were tried by a jury in the court below, and a verdict was returned for the appellee, assessing — 250 — damages at one hundred and eighty-seven dollars and ten cents. Appellant’s written motion for a new trial was overruled, and judgment was rendered on the verdict by the' court below, from which judgment this appeal is now here prosecuted. In this court the appellant has assigned several alleged errors of the court below; but his counsel, in their argument of this cause, consider and rely upon only one of these alleged errors, as “ sufficient to secure a reversal of the judgment below.” The alleged error of the court below, thus relied upon by appellant’s attorneys, is assigned on the l’ecord as follows: “ 2. The court erred in sustaining the plaintiff’s demurrer to the 2d paragraph of the defendant’s amended answer to the 3d paragraph of the complaint.” In this 2d paragraph of the appellant’s amended answer to the 3d paragraph of appellee’s complaint, the appellant alleged, in substance, that, long prior to the alleged taking and conversion of said whiskey, to wit, on the — day of-, 1872, the appellee made an ar- , rangement with one Charles McCoy, by which he procured and caused said McCoy to commence and carry on, in the city of Richmond, in Wayne county, the business of retailing intoxicating liquors; that said McCoy, in pursuance of said arrangement, applied for a license in his own name, from the board of commissioners, to retail intoxicating liquors in a certain saloon in said city, known as the “ Continental Saloon,” and being refused by said board, he appealed therefrom to the Wayne Common Pleas Court, wherein he obtained such license; that said McCoy, on the hearing of said application before said court, swore and testified, with the knowledge and approbation of the appellee, that he, said McCoy, was the sole proprietor of said saloon, and no one else was interested in said business; that the appellee, in pursuance of said arrangement, furnished said McCoy with the means to — 251 — purchase a stock of liquors to be kept and sold in said saloon, and to replenish and keep up the same, said saloon being known as the saloon of said McCoy alone,' who was, by the appellee’s advice and procurement, held out to the public as the proprietor thereof, the appellee not being personally engaged or employed in said business, and not allowing his name to be publicly known or used as having any interest therein, but there being a secret’agreement and understanding between them, that said stock of liquors should be and remain the appellee’s property, and the profits, or some part thereof, to enure to the benefit of said McCoy; that, while said arrangement was-so in force, and said business was so carried on, said McCoy, in the course of said business, contracted debts to certain parties, naming them, for goods which went into said saloon and were used in said business, and the appellee knew of the contracting of said debts, and neither lie-nor said McCoy notified said parties that the appellee had any interest in said business, or in said stock of goods, and that said debts were contracted on the faith that said stock and business were owned by said McCoy, the ostensible proprietor of said saloon; that, said debts being unpaid, said parties afterward, and without notice that appellee was interested in said business, brought suits against said McCoy, and recovered judgments thereon against him, before a justice of the peace of said county, setting out the date and amount of each judgment; that the justice issued executions on said judgments, directed to the appellant, then an acting constable of said county, and within one hundred and eighty days after the issue of said executions, the appellant found, in the possession of said McCoy, the two barrels of whiskey in appellee’s complaint described, which had been ordered by said McCoy in Cincinnati, and purchased by him on credit, for the purpose of replenishing the stock of said saloon, and being used in the course of said business, pursuant to said, arrangement, and was to be paid for out of the proceeds. — 252 — of said business; that the appellant, without any notice or knowledge that the appellee was the owner of any interest in said whiskey, levied said executions upon said whiskey as the property of said McCoy, and afterward ■advertised and sold the same according to law, and applied the proceeds to the payment of said executions and costs, which said levy and taking and sale by him are the identical taking and conversion alleged in the third paragraph of appellee’s complaint, and none other. Wherefore appellant prayed judgment. To this 2d paragraph of appellant’s answer, the appellee demurred on the ground of the alleged insufficiency of the facts therein to constitute a defence to the Bd paragraph of his complaint. This demurrer was sustained by the court below, and to this decision the appellant excepted. This decision the appellant has assigned as error, and for this alleged error only, he now asks this court to reverse the judgment of •the court below. In discussing the sufficiency of this 2d paragraph ■of appellant’s answer, as a defence to appellee’s action, the learned attorneys of the appellant thus state their first position in regard to said paragraph: “ The facts thus set up were such as to work a complete estoppel against the plaintiff, and to preclude him •from asserting ownership of the goods as against the ■defendant.” In our view of the paragraph in question, appellant’s position is not well taken. We have examined and considered each and all of the averments of this paragraph with gi’eat care, and we have failed to find that the appellee is therein or thereby charged with any intended deceit, either in his conduct or declarations, or with any fraud, actual or constructive, whereby the appellant was ■induced to levy upon, take and convert the whiskey, described in the complaint, as the property of Charles Mc-■Ooy. Indeed, this paragraph of the answer utterly fails — 253 — to connect the acts of the appellant, of which appellee complained, in any manner with the appellee. It is not alleged, that the appellee, by any act or declaration, induced the appellant to levy upon, take or sell the said two barrels of whiskey. It is not even averred, that the appellee had any knowledge or notice, or that he had the means of knowledge or notice, of any of the acts of the appellant, in levying upon, advertising or selling the appellee’s whiskey. McCoy’s creditors may have trusted to appearances, and the appellant may have relied upon the fact that he found the whiskey in McCoy’s possession ; but it is not alleged, that the appellee said or did any thing which tended to induce the action of the appellant in the premises, or which Avould, or ought to, preclude the appellee from asserting his ownership of the whiskey, as against the appellant. In fact, in this paragraph of the appellant’s answer, there is no averment of any of the matters which are necessary to constitute an estoppel. As between the appellant and the appellee, it was not alleged, that the appellee either represented to, or concealed from, the appellant any material facts; nor was it alleged, that the appellant Avas induced to act in the premises by the appellee’s representation or concealment of any material facts. Bigelow Estoppel, 480; Fletcher v. Holmes, 25 Ind. 458; The Greensburgh, etc., v. Turnpike Company v. Sidener, 40 Ind. 424; Meister v. Birney, 24 Mich. 435. The second position assumed by appellant’s counsel in argument is, that the facts set up in this paragraph of answer “ show that McCoy had such an interest in the goods as made them the subject of levy upon the particular executions described, notwithstanding the qualified OAvnership of the plaintiff, as between himself and McCoy.” This point the learned attorneys have merely stated, and have failed to elucidate it by argument. Under the averments of the answer, the whiskey Avas the property of the appellee; and, if it had been sold at a — 254 — ■profit by McCoy, “ tbe profits, or some part thereof,” would have belonged to McCoy. This right to the profits •on the sale of the whiskey would not, in our opinion, ■make the whiskey the subject of levy upon any executions against McCoy. Our conclusion is, that the court below did not err, in ■•sustaining the appellee’s demurrer to the second paragraph of the appellant’s amended answer to the third paragraph •of appellee’s complaint. The judgment of the court below is affirmed, at the ■costs of the appellant.