Foy and Others v. Reddick.

another paragraph which it is not necessary to notice, as no question arises upon it in this court.

A jury being waived, the case was tried by the court, resulting in a finding and judgment for the plaintiff. A motion for a new trial was filed and overruled.

The only question presented here, which need be noticed, is, as to the sufficiency of the cvience to sustain the finding of the court.

The evidence shows that, in 1858, Reddick was the owner of lot twenty-seven in Winamac, which was bounded on the north by Spring street. On the north-west corner of the lot was situate a dwelling-house, and Reddick, in 1858, built the house in controversy, which adjoins, and is permanently attached to, the house on lot twenty-seven, extending therefrom north, but stands in Spring street, and is described as a double story-and-a-half house.

One Selders subsequently became the owner of lot twenty-seven. Reddick became embarrassed, and, using his own language, left the country "prematurely." A judgment had been rendered against him in the Pulaski Circuit Court, in March, 1857, in favor of one Walker. In 1861, after Reddick had left the State, an execution was issued on Walker's judgment, by virtue of which the sheriff levied on and sold the house in controversy, as personal property. Walker became the purchaser. Selders was in possession of the house at the time of the sale. Some time after the sale, one Lane, the agent of Walker, who had bid off the property for him, informed Selders, that by Walker's direction he would let him have the house for Reddick, if he, Selders, would pay the amount it was bid off at, and pay Lane a debt of about thirty-two dollars that Reddick owed him. Selders thereupon wrote to Reddick, stating the offer made by Lane. Reddick replied, advising Selders to buy the property, and then sell it again, pay himself out of the proceeds, and apply the balance to the payment of Reddick's "honest debts."

Selders afterwards purchased the house of Lane, and paid

Foy and Others v. Reddick.

him the amount that he had bid for it at the sheriff's sale and ten dollars for back rent. Selders continued to occupy the house until his death, in 1864. He died without issue, leaving his widow the sole heir to his estate, who afterwards sold lot twenty-seven, and also the house in controversy, to the defendants Caroline Foy and her sister, Mary Conn. Reddick, when he built the house, did not know that he was building it in the street, but "supposed it was on a lot." He did not furnish Selders any money with which to make the purchase of Lane. Selders furnished the money himself, and ever afterwards claimed the house as his own. Reddick admitted, on the trial, that he never refunded, or offered to refund, the amount paid by Selders for the property, but at the same time testified, that he and Selders had been in partnership, and he had paid Selders otherwise, before he, Reddick, left Winamac, and that "Selders was fully paid the amount he advanced to Lane."

The first ground upon which the appellants claim a reversal of the judgment is, that the evidence shows that the house in controversy is real, and not personal, property, and hence replevin will not lie for its recovery. This position can only be maintained upon the hypothesis that it forms a part of the house on lot twenty-seven, and is therefore appurtenant to that lot. The evidence before us, however, is not sufficient to warrant such a conclusion.

It does not show any deed of conveyance, or other written evidence of title to lot twenty-seven, either to Selders or the appellants. It was shown on the trial, by parol evidence, that Selders owned the lot at the time he purchased the house of Lane, and at the time of his death; but it was sold by the sheriff as personal property, and Selders purchased it as such from Lane. And although the appellants purchased both the lot and the house of Selders' widow, yet they were two separate and distinct purchases. Indeed, the house, since 1861, seems to have been treated by all the parties as personal property, and not as appurtenant to lot

Foy and Others v. Reddick.

twenty-seven; and, in the absence of a conveyance of the lot to Selders, in terms sufficiently comprehensive to cover the house as appurtenant to the lot, it is but reasonable to presume that it was properly treated as personalty. Regarding it, then, as personal property, it remains to be determined whether the evidence justifies the finding of the court that Reddick was the owner of it. We do not think it does. The legality of the sheriff's sale is not controverted by Reddick. On the contrary, he claims title under it, and bases his right to recover on the assumption that Selders purchased it as his trustee and held it for him in trust, and that the right of property, as well as the right of possession, thereby vested in him. It may, perhaps, be inferred from the evidence, that Selders, at the time of the purchase, intended to let Reddick have the benefit of it, but he was under no legal obligation to do so. Reddick had no legal claim to the property. He did not furnish Selders the means to pay for it, and Selders was under no legal obligation to furnish them for his benefit. Selders bought the house and paid for it with his own money, and ever afterwards, so far as the evidence shows, claimed title in himself. He was not, in any legal sense, the trustee of Reddick in making the purchase, nor does a trust arise by implication of law from the facts under which it was made.

It may be properly remarked, in this connection, that when Selders wrote to Reddick, informing him of the offer of Lane, he did offer to furnish the money and buy the house for Reddick's benefit. The statement of Reddick, that Selders was fully repaid, amounts to nothing. It is simply a claim that he and Selders, long prior to the purchase of the house, had been partners in business, with an intimation that Selders was, in some way, indebted to him. But if such an indebtedness exists, it cannot be deemed a refunding of the money paid by Selders for the house, or in any way affect the merits of the question.

We think the court erred in refusing a new trial.

VOL. XXXI.—27

Morehead v. Murray and Another.

Judgment reversed, with costs, and the cause remanded for a new trial.

G. T. Wickersham, S. E. Perkins, L. Jordan, and S. E. Perkins, Jr., for appellants.

D. P. Baldwin, for appellee.

MOREHEAD V. MURRAY and Another.

CONTRACT.-Consideration.-Failure of.-Sale.-Suit on a note. Answer, that the defendant bought of the payee a certain number of fruit trees; that it was agreed by them that said trees should be in good condition, and that if any of them should not grow, the seller would replace them with other good trees; that on the day the note was given (in November), the seller delivered said trees, and represented them to be as provided for by said contract; that the defendant, not being experienced in the nursery business, believing the trees to be as represented, in consideration thereof, executed the note, and properly set out the trees; that the same were not in good condition, but were wilted, and in bad condition, and wholly worthless; that defendant did not and could not know their condition till long after the note was executed; that they did not grow, of which the seller had notice on the 1st day of the next June; yet he had wholly failed to replace them. Held, that the answer was good on demurrer.

SAME.-Evidence.-The trees were delivered to the buyer upon his written order directed to the seller, for certain trees at specified prices.

Held, that parol evidence was admissible to prove an agreement of the parties at the time of making said order, that the seller should replace any of the trees that might not grow.

PRINCIPAL AND AGENT.-Declarations. As steps in proving the authority of one as an agent in the transaction in controversy, evidence of his similar transactions with different persons and of his delarations therein was held admissible.

APPEAL from the Knox Circuit Court.

Suit by Morehead against Murray and Prather on two promissory notes bearing the same date, one for one hun

Morehead v. Murray and Another.

dred dollars, and the other for two hundred dollars, executed by the defendants to Miller, Swan & Co., and assigned by indorsement by the payees to the plaintiff.

Answer, in two paragraphs: first, the general denial; second, that on the day of the date of the notes sued on, November 8th, 1865, defendant Murray bought of Miller, Swan & Co. five hundred fruit trees and three hundred and ten grape vines, which it was agreed by them should be thrifty and in good order and condition, and that if any trees or grape vines should not grow, said Miller, Swan & Co. would replace them with other good trees and grape vines; that on the day aforesaid, Miller, Swan & Co. did deliver to defendant Murray five hundred fruit trees and three hundred and ten grape vines, and represented them to be as provided for by said agreement; and the defendants, not being experienced in the nursery business, and believing the trees and vines to be as represented, in consideration of said trees and vines, executed the notes sued on, said Murray as principal and said Prather as surety; that defendant Murray set out said trees and vines in the full belief that they were as represented, and thereby incurred great expense, to wit, one hundred dollars; that said trees and vines were not in good condition, but, on the contrary, were wilted, and in bad condition, and wholly worthless; that defendant Murray did not and could not know the condition of said trees and vines. until long after the notes sued on were executed; that said trees and vines were properly set out, and yet they did not grow, of which said Miller, Swan & Co. had notice on the 1st day of June, 1866; yet they have wholly failed to replace said trees and vines; wherefore defendants say that the consideration of said notes has wholly failed.

A demurrer to the second paragraph of the answer was overruled, and the plaintiff excepted.

The plaintiff replied by the general denial.

The court tried the cause without a jury, and found for the plaintiff in the sum of $42.02. A motion by the plaintiff for a new trial was overruled, the plaintiff excepting,