Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

positors and the depositary, as between themselves, is a question we need not here decide. For the purposes of this decision we may assume that the elevator company held appellants' wheat as bailee.

The agreement was that the elevator company should return to the depositors, not the identical wheat deposited, but wheat of a like kind and quality. Two car-loads of the wheat sold to Witherspoon, Barr & Co. was Mediterranean wheat, purchased by the elevator company, and stored in the warehouse, whence it was shipped to the purchasers. As we understand counsel for appellants, they do not claim that there can be a recovery for that wheat, as it was not of the kind and quality of the wheat stored by appellants. The other two car-loads, so sold to Witherspoon, Barr & Co., was Fultz wheat, the same as that stored by appellants.

The case before us differs in other important regards from the cases above cited. There the wheat in question was in the bins where it had been placed upon being stored, in one case, at the time when the fire occurred, and in the other at the time the mortgage was executed and the demand therefor was made. Here the wheat in question was not in the possession of the depositary, nor was it in the building where it had been stored at the time the demand therefor was made upon Witherspoon, Barr & Co.

On the contrary, Witherspoon, Barr & Co. had purchased it in the usual course of business, and had paid for it without any knowledge of any claims by appellants. It had been shipped to them, and was in their possession as such innocent purchasers. When appellants stored their wheat, they knew that the custom of the elevator company was to mix all the wheat stored, and that purchased by the company, in common bin or bins, and to sell and ship from the common mass. They knew, also, after their wheat had been stored, that the elevator company was selling and shipping wheat from the common mass. It was the custom of that company, as found by the court, to ship, from the elevator, from one to five cars at a time; the shipinents being publicly made from day to day, and from week to week. We think, as concluded by the court below, that by the voluntary acts of appellants, Runcie and Wallace, the persons composing the elevator company, were clothed with the apparent title and right to sell; and that, as to Witherspoon, Barr & Co. being innocent purchasers in the usual course of business, they should be protected.

As a general proposition, it is well settled, both in law and reason, that no one can convey a better title to property than he has. In other words, no one without title to property can convey title thereto, and thus defeat the claims of the rightful owner. But there are many cases where the owner of property will be estopped to assert his title thereto as against an innocent purchaser for value. We think this is such a case. As we have seen, appellants knew that their wheat was to be and was commingled with wheat purchased by the elevator company, and that that company was selling and publicly shipping from the common mass. They therefore knew that others were purchasing the wheat from the elevator company in the usual course of business, and paying their money therefor. By thus putting their wheat into the possession of the elevator company, and allowing it to sell and ship from the common mass, they clothed that company with an apparent ownership of and authority to sell the wheat which estops them to assert their title thereto, as against Witherspoon, Barr & Co., who invested their money in good faith, believing that to be a fact which appellants by their conduct permitted to appear to be a fact. Quick v. Milligan, 9 N. E. Rep. 392, and cases there cited, (present term.) As between appellants and the elevator company, the question is, what authority did the elevator company in fact have to sell and dispose of their wheat? As between appellants and Witherspoon, Barr & Co., the question is, with what apparent authority did appellants clothe the elevator company to sell and dispose of their wheat?

In the case of Cowdrey v. Vanderburgh, 101 U. S. 572, it was said: “The

[ocr errors]

principle is well settled that when the owner of property, in any form, clothes another with the apparent title or power of disposition, and third parties are thereby induced to deal with him, they shall be protected. * *

* The rights of innocent third parties * * * do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negiigence or mistaken confidence, he caused or allowed to appear to be vested in the party making conveyance."

Either appellants or Witherspoon, Barr & Co. must suffer by the alleged wrong of the elevator company. As between them, the loss ought to fall upon appellants. Not asking that their identical wheat should be kept for them, they trusted to the honesty of the elevator company that, in quality and quantity, the amount stored should be returned to them. As between them and the elevator company, they are innocent of wrong or laches. As between them and Witherspoon, Barr & Co. the rule should be applied that, where one of two innocent persons must suffer by the wrong of a third person, he must be the sufferer who put it in the power of the wrong-doer to cause the loss.

In the case of New York, etc., R. Co. v. Schuyler, 34 N. Y. 30, 69, we find this stateinent: “It goes back to the celebrated aphorism of Lord Holt in Hern v. Nichols, 1 Salk. 289, •for seeing somebody must be loser by this deceit, it is more reason that he that employs and puts trust and confidence in the deceiver should be the loser than a stranger;' or, as more tersely expressed by ASHHURST in Lickbarrow v. Mason, 2 Term R. 70: Whenever one of two innocent parties must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it." See, also, Quick v. Milligan, supra; Hunter v. Fitzmaurice, 102 Ind. 449; S. C. 2 N. E. Rep. 127; Young v. Bradley, 68 bil. 553.

Our attention is called to sections 6526, 6537, and 6541, Rev. St. 1881.

Sections 6526 and 6537 are in the act as originally passed, providing for licensed warehouses. As the houses owned and operated by the elevator company are not shown to have been such licensed warehouses, the provisions of that act bave no application or relevance here, if, in any event, anything therein could in any way affect the rights of innocent purchasers in a case like this.

Section 6541 and sections following were in another act, as originally passed, defining who are warehousemen, fixing their rights, liabilities, etc. There is nothing in the act that can affect or destroy the rights of Witherspoon, Barr & Co., being innocent purchasers, under the circumstances of this case. It is well known that the vast crops of this state are moved largely through the agency of elevators. Through them our surplus production in grain reaches the markets, whether in neighboring states, on the railroad, or abroad. To hold that dealers cannot acquire title to grain stored, as appellants' wheat was stored with the elevator company, without the production to them of the receipts issued to depositors, would be to throw a serious and unreasonable obstacle in the way of the sale and transportation of our crops. The statute was not intended to deter nor to affect the rights of innocent purchasers in a case like this, as were Witherspoon, Barr & Co.

It is argued, further, that the conversation between Preston and Wallace, in the warehouse, in relation to the wheat then on hand, operated as an appropriation of that wheat. Whatever might have been said of the effeet of that conversation under different circumstances, it is sufficient here that appellants, including Preston, having clothed the elevator company with the apparent ownership of and authority to sell the wheat, cannot change the rights of innocent'third parties by such private negotiations between themselves and the elevator company. As bearing upon that proposition, see the case of Pittsburgh, etc., Ry. Co. v. Adains, 105 Ind. 151; S. C.5 N. E. Rep. 187.

Judgment affirmed, with costs.

(109 Ind. 69)

BOARD OF COM'RS OF KNOX Co. v. MONTGOMERY.

(Supreme Court of Indiana. December 22, 1886.) 1. COUNTIES-BRIDGE-LIABILITY FOR NEGLIGENCE.

A county is liable for negligence in constructing or maintaining a bridge. 2. SAME-EVIDENCE-COMMISSIONERS' RECORD.

On the trial of an appeal from a judgment of a county commissioners' court, refusing a claim for an allowance for injuries sustained by falling through a defective bridge, the record of the commissioners, though showing grave errors and irregularities, is admissible in evidence to prove that they ordered the location of the

highway of which the bridge formed a part. 3. JUDGMENT-COMPLAINT FOR REVIEW-DEMURRER.

Where a defendant fails to appeal from an order overruling his demurrer to a complaint for review, he is bound by it as the effect of the judgment overruling the

demurrer is to re-instate the former case. 4. APPEAL-RECORD-BILL OF EXCEPTIONS.

No question is presented for review on a ruling refusing to dismiss, unless the motion is incorporated in a bill of exceptions. Appeal from circuit court, Gibson county.

Cullop, Show & Kessinger, for appellant. Reiley & Niblach and McCullough & Millcr, for appellee.

ELLIOTT, C. J. At the December term, 1883, of the commissioners' court of Knox county, the appellee presented a claim for an allowance for injuries sustained by falling through a defective bridge. The claim was not allowed, and an appeal was taken to the circuit court. At the February term, 1884, of that court, an amended complaint was filed, to which a demurrer was sustained, and final judgment entered. At the May term of that year the appellee filed a complaint to review that judgment. A demurrer was filed, and overruled to the complaint for review. It is insisted by the appellee that as the court overruled the demurrer to the complaint for review, and as the appellant did not appeal from that ruling, he is bound by it, for the effect of the judgment overruling the demurrer was to reinstate the former case.

The authorities support this position. The judgment ordering a review, not having been appealed from, concludes the appellant. In Brown v. Keyser, 53 Ind. 85, it was said: “A judgment for or against a review of a former judgment puts an end to the action for review.” This doctrine is approved in Keepfer v. Force, 86 Ind. 81. This principle disposes of all that is said by appellant's counsel in their attack upon the complaint for review.

It is contended by counsel for the appellant that the Gibson circuit court, to which the case was sent upon change of venue, erred in overruling the motion to dismiss. This motion is not exhibited in a bill of exceptions, and consequently no question is presented for our consideration. Washington Ice Co. v. Lay, 103 Ind. 48; S. C. 2 N. E. Rep. 222; Crumley v. Hickman, 92 Ind. 388; Yost y. Conroy, 92 Ind. 464, and cases cited.

One of the causes assigned for a new trial is that the court erred in admitting in evidence the record of the commissioners of Knox county, ordering the location of the highway of which the bridge formed a part. Various objections to the proceedings are urged by the appellant, but none of them are available. In such an action as this, there can be no inquiry as to the validity of the proceedings by which the board of commissioners assumed to establish a highway. It is enough to prove that the board assumed to establish the highway, and that the commissioners recognized the highway as one belonging to the county, and under their control. Evidence that they assumed

[ocr errors]
[ocr errors]

to establish the highway is competent, although it may appear that there were the gravest errors and irregularities in the proceedings. Hunt v. Town of Winfield, 36 Wis. 154. The liability of counties for negligence in constructing or maintaining bridges is no longer an open question in this state, for there are many cases declaring that they are liable. Board of Com’rs v. Rickel, 106 Ind. 501, see page 502; S. C. 7 N. E. Rep. 220; Vaught v. Board of Com’rs, 101 Ind. 123; Patton v. Board of Com'rs, 96 Ind. 131; Board of Com’rs v. Emmerson, 95 Ind. 579; Board of Com’rs v. Legg, 93 Ind. 523; S. C. 47 Amer. Rep. 390; Board of Com’rs v. Brown, 89 Ind. 48; Board of Com’rs v. Deprez, 87 Ind. 509; Board of Com'rs v. Pritchett, 85 Ind. 68; Pritchett v. Board of Com’rs, 62 Ind. 210; House v. Board of Com’rs, 60 Ind. 580.

The complaint is sufficient after verdict. If it were granted that it would be bad upon demurrer, because of the failure to characterize the conduct of the appellant as negligent by the use of the epithet negligence, still there are facts stated from which negligence may be fairly inferred, and this certainly makes the complaint good after verdict, if, indeed, it would not be good upon demurrer. The question, however, does not come to us upon demurrer. In truth, the question is not legitimately before us in this action in any form, for the sufficiency of the complaint was established by the judgment in the action brought to review the judgment declaring the complaint bad. As that judgment is conclusive, it cannot be overthrown in this appeal. Judgment affirmed.

[ocr errors]

(109 Ind. 415)

CARD 0. STATE. 1

(Supreme Court of Indiana. December 23, 1886.) 1. CONSPIRACY_EVIDENCE — DECLARATIONS AND LETTERS OF ONE ADMISSIBLE AGAINST ALL.

Where evidence has been introduced sufficient to establish a prima facie case of conspiracy, letters and declarations by one of the alleged conspirators, written or made while attempting to carry out the objects of the conspiracy, and in further. ance thereof, according to the common plan or design, are admissible against the

others. 2. SAME-FORGERY-OTHER CRIMINAL ACTS-PART OF SYSTEM.

Where a series of notes are forged in pursuance of a system of conspiracy, they are all admissible in evidence to show and explain the system, on trial of one of the conspirators for forging one of such notes, although he is shown to have forged then all in pursuance of the system of conspiracy. Appeal from circuit court, Kosciusko county. Haymond & Royse, for appellant. The Attorney General, for the State.

HOWK, J. In this case the indictment charged that appellant and Theodore W. Strain, “on the ninth day of September, 1885, at the county of Kosciusko, in the state of Indiana, did then and there feloniously, falsely, and fraudulently make, forge, and counterfeit a certain promissory note, purporting to have been made and executed by one John F. Fisher, for the payment of money to one John Hall, which said false, forged, and counterfeit promissory note is of the following tenor, to-wit, [setting out a copy of such note;] with intent then and there and thereby, feloniously, falsely, and fraudulently, to prejudice, damage, and defraud the said John F. Fisher."

Äppellant was awarded a separate trial, and, upon his arraignment and plea of not guilty as charged in the indictment, the issues joined were tried by a jury, and a verdict was returned finding him guilty as charged, and assessing his punishment at imprisonment in the state's prison for 10 years, and a fine in the sum of $10. Over his motion for a new trial, the court rendered judgment against him upon and in accordance with the verdict.

The only error of which appellant's counsel complain in their brief of this cause is the alleged error of the court below in overruling the motion for a 1 Rehearing denied.

[ocr errors]

new trial. 'In discussing this error, counsel say: "We think that the court erred, during the trial, in permitting witnesses for the state to detail conversations had with Woodson s. Marshall and others, not in the presence of appellant; and desire to call the attention of the court to the fourth, fifth, sixth, seventh; eighth, ninth, tenth, and eleventh written reasons for a new trial. The argument of one, will, we think, be applicable to all.”

We will consider so many of these causes for a new trial as appellant's counsel have discussed, in the order they have pursued in argument.

They first direct our attention to the fifth reason assigned for a new trial, as follows: "The court erred in permitting the state, over the objections of defendant, to put in evidence a letter from Woodson S. Marshall to W. W. Mikels, dated January 21, 1886." The letter referred to in this cause for a new trial reads as follows:

Mr. Mikels: I dropped you a postal to-day. If Mr. S. wants the notes', I think he can have them, as Mr. H. is still here. If you come up in the morning, say nothing to any one until you see me. If you see Cook, and he asks you where you got the Hall notes, say from Hall, and that he is a Chicago man; but don't say you have any notes,—that you returned them to Chicago. Will talk over matters, if you come up. We may want to do some fine figuring. Burn this. If S. made a deed, bring it along. [Signed] “Yours, truly,

W. S. MARSHALL. "8 P. M., 1-21-86.”

It is shown by the record that appellant objected to the admission of this letter in evidence "for the reason that the evidence is irrelevant and immaterial, and does not tend to prove any of the allegations in the indictment; and that it is a written declaration, made by Woodson S. Marshall in the absence of defendant, and without his knowledge or consent, and was hearsay.” The court overruled these objections, and admitted the letter in evidence, and appellant excepted. The letter of Marshall was manifestly admitted in evidence by the trial court upon the ground that it had been shown to the satisfaction of tbe court, by other evidence appearing in the record, that a criminal conspiracy had been entered into, by and between appellant and his codefendant, Strain, and Marshall, the object and purpose of which conspiracy were the forgery of promissory notes, in the names of certain responsible, persons, and the sale and utterance of such forged and counterfeit notes. There was evidence introduced which tended to prove the formation and existence of such a conspiracy by and between the parties named, for the purposes mentioned, and the parts which each of the conspirators was to perform in the

w accomplishment or furtherance of the criminal design; and that in pursuance of such conspiracy, and while attempting to perform the part assigned him therein by selling and uttering certain of the counterfeit promissory notes forged by such conspirators, Marshall made certain verbal and written declarations, and, among others, the one referred to in the fifth cause for a new trial, and heretofore quoted, of and concerning such. notes, and his efforts to sell and utter the same, and about John Hall, the payee named therein. It is manifest that the trial court regarded such evidence as sufficient to establish, prima facie, the fact of such a conspiracy, by and between appellant, Strain, and Marshall, for the object and purpose aforesaid. We cannot say that the trial court erred in its view of the effect of such evidence, for this question is one peculiarly for the consideration and decision of the learned court presiding at the trial. he Upon this subject, Mr. Greenleaf has said: “A foundation must first be laid by proof sufficient, in the opinion of the judge; to establish prima faoće the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish: such fact. The:connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each

« ΠροηγούμενηΣυνέχεια »