Bixel v. Bixel

Zollaks, J. Appellant charges in his complaint, that in the year 1878 appellee wrongfully and unlawfully took possession of, and converted to his own use, wheat, corn, horses, hogs, cattle, a wagon, harness, and $120 in money, the property of appellant. In his answer, appellee admits that he received from appellant the property described in the complaint, except the money , which he denies having received, and avers that the number .if bushels of wheat and corn is overstated in the complaint: It is further averred in the answer, that appellant, being compelled to be absent, put the property into the possession of •appellee, with instructions to care for and sell it, and apply the proceeds in payment of appellant’s debts; that he did sell it, with the exception of some of the hogs that died, and applied the proceeds as directed. The evidence, is such as to make it incumbent upon this •court to accept as an established fact, that appellee did not take possession of the property in 1878, either wrongfully or unlawfully, but, on the contrary, took possession of and sold it by the direction of appellant. The case is prosecuted and defended upon two theories. Appellant contends that notwithstanding the fact that the possession and sale of the property by appellee were with his consent and under his- direction, he may recover in this action the value of the property, because it is not shown that .appellee applied the proceeds of the sales to the payment of .his, appellant’s debts. [536] Appellee’s contention is, that the gravamen of the action.' is the wrongful conversion of the property, and not of the proceeds of the sales thereof, and that hence appellant can not recover in this action, because it is not shown that the possession and sale of the property were wrongful. But for the code abolishing distinct forms of action, this would be an action of trover. In such a case, the plaintiff,, in order to recover, must show that the property described' in the declaration has been wrongfully converted by the defendant. It has been said that where there has been such a conversion by a sale of the property, the plaintiff may maintain trover, or he may dispense with the wrong and suppose the sale made by his consent, and bring an action for the money for which the property was sold, as money received to-his use. Cooley Torts, pp. 92-3; Murray v. Burling, 10 Johns. 172. Both of these remedies could not be sought in the same action. Palmer v. Jarmain, 2 M. & W. 282. . The holding in that case is correctly stated in the syllabus,, as follows: “ If a party, authorized by the holder of a bill of exchange to get it discounted, and to apply the proceeds-in a particular way, does get it discounted, but misapplies any part of the proceeds, he can not be sued in trover for the-bill, but must be sued for money had and received.” The case of Goss v. Emerson, 3 Foster (N. H.) 38, was for-the alleged conversion of promissory notes. * The notes were-placed in the hands of the defendant as-collateral security.. He transferred the notes to another, who collected them. It was held, that as the defendant came rightfully into the possession of the notes, and had a right to transfer his interest’ in them, he could not be made liable for what had-been collected upon them in an action of trover for their wrongful conversion. It was said: “ It is the written instrument, and-not the money due on it, the security and not the debt,., that is the subject of the action.” See, also, 6 Wait Actions and Def., p. 183; Hodges v. Lathrop, 1 Sandf. 46; Kellogg v. Fox, 45 Vt. 348. [537] The case of Laverty v. Snethen, 68 N. Y. 522 (23 Am. R. 184), cited by counsel for appellant, is not opposed to the above cases, but in harmony with them. In that case it was said: “ The result of the authorities is that if the agent parts with the property, in a way or for a purpose not authorized, he is liable for a conversion, but if he parts with it in accordance with his authority, although at less price, or if he misapplies the avails, * * * he is not liable for a conversion of the property, but only in an action on the case for misconduct.” If a person, having authority from the owner to sell the property and apply the proceeds, sells the property, and misapplies or converts the proceeds, he is liable for such misapplication or conversion, but does not became a wrong-doer ab initio. . In the possession and sale of the property, appellee was in no way a wrong-doer, because he was acting under authority from appellant. His wrong, if he was in fact guilty of any wrong, was in not applying the proceeds of the sale as directed, and that wrong was subsequent to the possession and sale. He is not, therefore, liable for having converted the property. As we have said, the code consolidated all forms of action into one, denominated a civil action, but that does not affect the remedy, nor does it authorize a recovery in any case beyond the case made by the complaint. The code requires that the complaint shall contain a statement of the facts constituting the cause of action, in plain and concise language (R. S. 1881, section 338), and it has always been held that the plaintiff must recover secundum allegata et probata, or not at all. Jeffersonville, etc., R. R. Co. v. Worland, 50 Ind. 339; Paris v. Strong, 51 Ind. 339; Boardman v. Griffin, 52 Ind. 101; Louisville, etc., R. W. Co. v. Godman, 104 Ind. 490 (494); Brown v. Will, 103 Ind. 71; Hasselman v. Carroll, 102 Ind. 153; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160. In this case, the complaint charges a conversion of the [538] property and nothing more. There is no charge nor intimation, that appellee converted the'proceeds of the sale of the property. There not only having been no proof of a conversion of the property, but proof to the contrary, appellant was not arid is not entitled to recover. For the purpose of showing that appellee had not applied the proceeds of the sale of the property as directed, appellant offered to prove by his own testimony the amount of his indebtedness when he left, and the amount when he returned, after appellee had sold the property. There was no error in excluding the ■offered testimony, for the reason that it was immaterial, there being no issue to which it was applicable. Appellee’s answer was in the nature of an argumentative denial, and in no event would it change the case as made by the complaint. See Leary v. Moran, 106 Ind. 560. The court below adopted appellee’s theory as to the nature of the case, and charged the jury, that if they should find from the evidence that appellant placed the property in the care and custody of appellee, with instructions to sell it and apply the proceeds to the payment of his, appellant’s, debts, and that appellee sold it, there could be no recovery in appellant’s favor, although appellee may have failed to apply the proceeds as directed; in short, that under the allegations of the complaint, appellant must recover for a conversion of the: property or not at all, and that a failure to properly apply, or a misapplication of the proceeds of the sale of the property, did not amount to a conversion of the property. These instructions were all proper and applicable to the case as made by the complaint and the evidence. Appellant’s instructions upon the opposite theory were properly refused. Complaint is made that the court did not fully and definitely define to the jury the meaning of the term conversion. If appellant desired fuller instructions, he should have asked them. Powers v. State, 87 Ind. 144. It is contended further, that the judgment against appellant for costs should be reversed, because the evidence shows [539] that appellee, -without authority so to do, sold some of appellant’s wheat in 1879. A sufficient answer is, that the complaint does not charge any such sale, and the evidence shows that the same was authorized or ratified by appellant. Filed Oct. 5, 1886. We have examined all of the questions discussed by appellants counsel, and find no error presented by the record that would justify a reversal of the judgment.- Judgment- affirmed, with costs.'