Kinney v, Blythe. KINNEY V. BLYTHE. PRACTICE.-Supreme Court.-Preponderance of Evidence.-Where the Supreme Court finds evidence to support the finding, it will not go beyond this to determine the preponderance of the evidence. SALE.-Fraud.-Agent.-On a sale of goods it was agreed that the buyer should give to the seller, in payment, upon delivery of the goods, notes of solvent persons. A certain note so given was not such as the contract thus called for, and the buyer knowing this, fraudulently deceived the seller's agent to whom he delivered the note, knowing him to be such agent and knowing that the proceeds of the sale were to go to, and become the property of, the agent, who, on discovering the deceit, offered to return the note to the buyer and demanded of him other good notes. There being evidence of these facts in a suit by the seller against the buyer, the plaintiff bringing the note into court and offering to return it to the defendant; there was a finding for the plaintiff in a certain sum, and that the defendant be entitled to withdraw the note from the files of the court and hold it as his own. Held, that the finding was correct. APPEAL from the Jackson Common Pleas. The appellee filed his complaint, consisting of two paragraphs, against the appellant. The first paragraph is an ordinary statutory count for goods sold and delivered, with a bill of particulars. The second paragraph is, substantially, as follows: "That on the 8th day of January, 1867, plaintiff, at defendant's request, sold and delivered to him all his saloon liquors, bottles, casks, &c., then on hand, and of the value of $806.45; for which defendant agreed to let plaintiff have, in payment, notes of good, solvent parties of Salem, Indiana, payable on the 1st day of March, 1867, which plaintiff agreed to accept; that in pursuance of said contract, defendant took possession of said property, and in a few days thereafter delivered to plaintiff's father, who was authorized by plaintiff to act for him in the premises, a note for $675, on one E. H. Logan, whom defendant falsely and fraudulently represented to be perfectly solvent, and worth in real estate not less than ten thousand dollars, in part payment for said Kinney v. Blythe. property; that neither plaintiff nor his father knew anything about the pecuniary circumstances of said Logan, but wholly relied upon defendant's said false and fraudulent representations; that previous to that time plaintiff had authorized his father, William D. Blythe, to receive from defendant the notes by him to be given to plaintiff, as agent for said plaintiff, and then to apply any notes so received in payment pro tanto of the indebtedness of said plaintiff to said William D. Blythe; that plaintiff's said father received the said note from the defendant in payment in part of the plaintiff's indebtedness to his father; that, in truth and in fact, said Logan was not and is not solvent; that he has not and had not, at that time, any real estate; that, on the contrary, the said Logan was and is wholly insolvent, and has no proper ty of any kind out of which plaintiff can or could make his money; that plaintiff's father, as agent aforesaid, before the commencement of this suit, on learning that said Logan was insolvent as aforesaid, tendered said note back to defendant, who refused to accept the same; that plaintiff's father then returned said note to plaintiff and refused to apply the same on plaintiff's indebtedness to him; that defendant, at the time he made said representations of the solvency of said Logan, knew that the same were false in every particular, but designing to cheat and defraud plaintiff out of his said property, made said false and fraudulent representations; that plaintiff now brings into court said note, and offers to surrender it up to defendant; that said defendant has refused to let plaintiff have any other notes, although often requested so to do." The appellant filed his answer, as follows: A general denial, together with an agreement entered of record, "that both parties may give in evidence all matters that could be given in evidence under any proper plea that might be pleaded herein." The cause was submitted to the court for trial, and there was a finding for the appellee for the sum of $707.62; and that the appellant should be entitled to the possession and Kinney v. Blythe. ownership of the note in the complaint mentioned, and be entitled to withdraw the same from the files of this cause and to have and hold the same as his own. The appellant moved for a new trial, and the motion was overruled. RAY, J.-We are asked to reverse this case upon the evidence. There was proof that the appellant was to give in payment "notes of good, solvent parties of Salem, Indiana;notes that could be cashed at Salem at any time." These notes, by a reasonable construction of the contract, were to be delivered on the delivery of the saloon to the appellant. Certain notes were delivered, and there was evidence from which the court could find that they were not such notes as the contract called for, and that the appellant knew this fact and fraudulantly deceived William II. Blythe, who was acting for his son in the sale of the saloon, and that new notes were demanded before suit was brought. The plaintiff's agent below stated, that "when I saw the way it was assigned, I told Kinney I wanted him to take it back and give me good paper." This was sufficient. The appellant knew that the proceeds of the sale were to go to him, and that he was acting as agent for his son in the trade. All this is denied, but we find evidence which will support the finding, and we cannot go beyond this to determine the preponderance of the evidence. No other questions are discussed for the appellant. J. B. Brown, for appellant. W. K. Marshall, J. M. Bills, and W. A. Sipe, for appellee. The Indianapolis and Cincinnati Railroad Company v. Paramore. 31 143 THE INDIANAPOLIS AND CINCINNATI RAILROAD COMPANY v. PAR AMORE. RAILROAD.—Negligence.—Pleading.—Where the owner of a quantity of cordwood deposits the same at a certain place near a railroad track, in accordance with the direction of an agent of the railroad company and under an agreement with such agent by which it is to become the property of the railroad company when measured and paid for by the company, but until so measured and paid for to remain the property of such owner, and while so remaining his property it is consumed by fire originating from a locomotive engine in the use of the company and caused by the negligence of the employees of the company, and these facts are averred in the complaint in a suit by such owner against the company to recover the value of the wood; it is not necessary to allege also the destruction of the wood without the fault or negligence of the plaintiff. SAME. Burden of Proof.-It is the duty of a railroad company to use machinery properly constructed with a view to prevent fire from being communicated to property lawfully placed by the owner thereof near the railroad track, and the engines should be operated with care and skill to the same end. If fire is communicated to such property from an engine by reason of a failure to use proper preventives, or by the carelessness of employees, the company is liable for the consequences; but negligence in either respect should not be inferred without proof, the burden of which rests on the party alleging it. SAME.-Watchman.-The railroad company is not bound to provide a watchman to protect property so placed by the owner, at his own instance, without any contract with the company, in danger of taking fire by unavoidable accident from the engines used by the company. APPEAL from the Decatur Circuit Court. ELLIOTT, C. J.-Paramore, the plaintiff below, recovered a judgment against the railroad company, from which the latter appeals. It appears from the record that the recovery was had upon either the second or third paragraph of the complaint. Demurrers to these paragraphs were overruled; and this ruling presents the first question in the case. The averments are substantially the same in each. We state the facts as they are presented by the third paragraph. It alleges, that the railroad company, by its agent, contracted and agreed with the plaintiff that if he would deliver on 141 664 31 143 154 332 The Indianapolis and Cincinnati Railroad Company v. Paramore. the line of the company's railroad track, at or near the town of New Point, in the county of Decatur, and at such places as were indicated by such agent, a quantity of cordwood for the use of the company, that the latter would, at reasonable times, and at least once a month, measure and pay for the same a fair cash price; that in pursuance of said contract, and in accordance with the instructions of said agent, the plaintiff did, in September, 1865, deliver as directed, one hundred and twenty cords of wood, of the value of five hundred dollars, of which the defendant had notice. Yet the defendant failed and refused to measure said wood, for a long time, to wit, for more than one month; and that before the same was measured, it was totally burned up and destroyed by fire, originating from a locomotive engine of the defendant, and caused by the fault, carelessness, and negligence of the employees of the defendant, &c. The first paragraph is on contract for wood sold and delivered to the railroad company. The second and third are treated by counsel of both parties, in this court, as paragraphs in tort, resting on the allegation that the agents and employees of the railroad company, in charge of the locomotive, by carelessness and negligence in running the same, set fire to and thereby destroyed the plaintiff's wood; and the objection urged to their sufficiency is, that it is not averred that the wood was destroyed without the fault or negligence of the plaintiff. A contract between the parties in reference to the wood, and its delivery on the line of the railroad under the direction of the defendant's agent, are clearly alleged, as well as the failure of the defendant to measure and pay for the wood within the time limited, and no substantial objection to them as paragraphs on contract is apparent. But assuming that it may be inferred that, under the alleged agreement, the wood remained the propcrty of the plaintiff until it was measured and paid for, and before that was done it was destroyed by fire caused by the carelessness and negligence of the servants and employees of the railroad company in running its locomotive on the |