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ELLIOTT, J. A complaint on account for work and labor performed at the request of the defendant, which charges that the defendant is indebted to the plaintiff, but omits to allege that the debt is due and unpaid, is good. Pittsburgh, etc., Co. v. Thornburgh, 98 Ind. 201; Hartlep v. Cole, 94 Ind. 513; Heshion v. Julian, 82 Ind. 576; Mayes v. Goldsmith, 58 Ind. 94.

The appellee requested the court to instruct in writing, but the appellant did not, and the court gave an oral instruction. The appellant cannot have a judgment of reversal on the ground that the court denied his adversary's request. “Charging the Jury," $$ 106, 107; Columbus, etc., Co. v. Powell, 40 Ind. 37. In the present instance the appellee, by

. the request for a further instruction, practically withdrew the request to instruct in writing, so that there was really no ruling upon the request of which even the appellee could rightfully complain.

Exceptions to instructions, made for the first time in the motion for a new trial, are too late to be available. Judgment affirmed.

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(105 Ind. 81)

ALEXANDER and others v. SWACKHAMER.

Filed April 1, 1886. SALE-FRAUD ON OWNER- BONA FIDE PURCHASER FROM PARTY IN POSSESSION

BY FRAUD-CONVERSION.

Alexander v. Swackhamer, 4 N. E. Rep. 433, adhered to, on petition for rehearing. Appeal from Marion superior court. On petition for rehearing. John A. Holman and F. Winter, for appellants. McDonald, Butler & Mason, for appellee.

MITCHELL, J. It is contended, in support of the petition for a rehearing, that by delivering his property to the impostor, under the circumstances disclosed, the appelle: is estopped to assert, as against a good-faith purchaser, that he had not by such delivery invested the impostor with apparent authority to sell the property. It is said the question is not whether the title passed by the transaction between the appellee and the swindler, but whether such an appearance of authority was created by delivering the cattle into his possession, with knowledge that they were to be shipped to a firm engaged in selling on commission, as that the appellee may not now assert anything to the contrary. In the consideration of this question at the former hearing, our opinion was adverse to the view of the appellants in this regard. We held that, as one of the essential factors to a contract—one of the contracting parties—was entirely wanting, no contract resulted, and hence no title passed, and that a delivery under the erroneous supposition that a sale had been made neither invested the person to whom the delivery was made with title, nor with an apparent authority to sell or dispose of the property thus delivered. We adhere to this conclusion.

Our attention is called to the case of Samuel v. Cheney, 135 Mass. 278. Upon an examination of the case we do not think it supports the appellants' contention. The origin of that case was a suit to hold a common carrier liable for goods delivered to a swindler. An imposter falsely personated a merchant in good credit, and ordered goods to be shipped to himself by the name of the merchant personated, at a given number. The goods were delivered by the carrier, according to the directions upon them, to the person who actually sent the order. The consignor supposed the order was from the merchant. The merchant neither gave the order nor received the goods, but the carrier delivered the goods at the place to which they were directed, and to the person who actually ordered them. It was held that the contract of the carrier was not that he would ascertain who is the owner of the goods, and deliver to him, but that it was sufficient to exonerate the carrier from liabilities for neg. ligence if he delivered the goods, according to directions, to the person to whom they were sent. That the consignor directed and sent the goods to a person different from the one he actually intended, could not make the carrier liable for negligence in delivering the goods at the place to which they were directed, and to the very person who ordered them. No question of title or apparent authority was involved in the case. The sole question related to the carrier's negligence.

The appellee was not estopped, on the ground of negligence, in delivering the cattle under the circumstances disclosed. To constitute an estoppel the party sought to be estopped must have designedly done some act or made some admission inconsistent with the claim or defense which he proposes to set up, and another must have acted on such admission, with his knowledge and consent. The owner of the cattle was induced to believe that he had made a sale to Fort, Johnson & Co. Acting on that belief, he delivered the property, as he supposed, to a member of the firm. For want of a purchaser no contract of sale resulted. No authority, or appearance of authority, was either conferred, or attempted to be conferred, upon the impostor other or different from that which would have attended a sale. When it resulted that no sale took place, the delivery and all the incidents of the transaction were a nullity, and ineffectual to support the claim of the purchaser. It was void ab initio. Unless negligence resulting in injury to another couid be imputed to the owner of the property after he discovered or might have discovered the deceit practiced upon him, he had the right to treat the property as his own, and recover as for a conversion. Upon the subject generally, see Edmunds v. Merchants', etc., Co., 135 Mass. 283; Thacher v. Moors, 134 Mass. 156; Rodliff v. Dallinger, 4 N. E. Rep. 805.

The petition for a rehearing is overruled.

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(106 Ind. 120)

BARRETT v. LEWIS.

Filed April 2, 1886.
VENDOR AND VENDEE-LIEN-PURCHASE PRICE OF LAND.

Wuere it appears that a debt is in fact a part of the purchase price of land acquired in the transaction out of which the debt arose, a court of equity, no obstacle intervening, will declare a lien on such land in favor of the person to whom such debt is due, although the technical relation of vendor and vendee may not exist between the parties. Appeal from Marion superior court. Dailey & Winpenny, for appellant. R. E. Smith, for appellee.

MITCHELL, J. Hester A. Lewis conveyed a tract of land in Marion county to Gottfried Muhlman, and to secure part of the purchase price took back a mortgage. Subsequently she obtained a decree of foreclosure, and upon a sale of the land made in pursuance of the decree she became the purchaser, and received from the sheriff a certificate of purchase in due form. Before the period for redemption expired, she sold and assigned the certificate, and all her rights thereunder, to Lucy B. Barrett, who paid part of the consideration for the assignment in cash, and for the residue executed her promissory note, due in two years. It was stipulated in the note that it was given for "purchase money for real estate." At the expiration of the year for redemption, which was about four months after taking the assignment, Mrs. Barrett received a sheriff's deed upon the certificate, and went into possession of and has ever since continued to own the land. The note given in part payment for the assignment of the certificate remaining unpaid, suit was brought by Mrs. Lewis to enforce a vendor's lien upon the land. Upon a special finding of facts, of which the foregoing is the substance, the superior court at special term stated conclusions of law, upon which a decree was given declaring and enforcing a vendor's lien for the amount due upon the note. This judgment was affirmed upon appeal to the general term, and the sole question here is whether, upon the transaction stated in the special findings, a vendor's lien resulted.

The lien which arises in favor of the vendor of land, or of the person to whom purchase money is due, is peculiarly of equitable cognizance. Equity has regard, in such cases, as in others, for the substance, and not the mere form, of the transaction. Disregarding form, a court of equity will not permit substantial equities which are clearly established to be defeated by the interposition of merely nominal or technical distinctions. If, upon looking through the transaction, it appears that a debt is in fact part of the purchase price of land acquired in the transaction out of which the debt arose, no other obstacle intervening, a lien will be de clared upon the land so acquired in favor of the person to whom such debt is due. This is clearly the result of the well-considered case of Dwenger v. Branigan, 95 Ind. 221, and the authorities there cited.

It is elaborately argued that a certificate of purchase vests no title to the land in the holder, and that the transfer of the certificate did not

create the relation of vendor and vendee between the assignor and the assignee. It may be conceded that the certificate of purchase did not of itself vest the holder with a legal title, and that the assignor was not, by the fact of assigning the certificate, technically a grantor. It was not necessary that the plaintiff should have been the holder of the legal title, or that she should have been nominally the grantor, in order that a lien in her favor might be declared. There would be force in the argument of appellant, if, in order that an equitable lien might have arisen out of the transaction, it was a requisite that the technical relation of vendor and vendee should have existed. It has been repeatedly held that the existence of this relation does not determine whether or not an equitable lien may be declared. Johns v. Sewell, 33 Ind. 1; Fleece v. O'Rear, 83 Ind. 200; Dwenger v. Branigan, supra; Carey v. Boyle, 53 Wis. 574; S. C. 11 N. W. Rep. 47; Jones v. Parker, 51 Wis. 218; S. C. 8 N. W. Rep. 124; Kaiser v. Lembeck, 55 Iowa, 244; 8. C. 7 N. W. Rep. 519; Curtis v. Root, 20 ml. 53.

In the case before us the appellee sold and conveyed her land, receiving, as security for part of the purchase price, a mortgage from the purchaser. The foreclosure of the mortgage and sale resulted in investing her with a certificate of purchase. The assignment of this certificate was the only possible method by which the right of the holder in the land could be transferred. This resulted, as it was evidently contemplated it would, in investing the appellant with all the title which the appellee had in the first instance to the land. The note stipulated on its face that it was given for part of the purchase price of real estate.

This is perBuasive of the understanding of the parties at the time. It was according to the fact, as events proved. It is the unpaid purchase money which creates the lien; and it is of no consequence to whom the money is due, so that it can be regarded in equity as purchase money. The lien results from the transactions between the parties, and is manifested by all the circumstances attending each particular case. Boyd v. Jackson, 82 Ind. 525; Nichols v. Glover, 41 Ind. 24.

Under the circumstances of this case, it was correctly declared that a lien arose.

The judgment is therefore affirmed, with costs.

(103 Ind. 562)

McLAIN ». WALLACE, Receiver..

Filed April 23, 1885. 1. BANKS AND BANKING-LIABILITY-SPECIAL AND GENERAL DEPOSITS.

Upon a special deposit a bank is merely a bailee, and is bound according to the terms of the special deposit; but on a general deposit, without special agreement, the money becomes the property of the bank, and the depositor has no longer any claim on that money; his claim is on the bank for a liko

amount of money.1 2. SAME-INSOLVENCY_PAYMENT OF GENERAL DEPOSITORS.

Upon the insolvency of a bank, its general depositors must be paid pro rata. 8. SAME-DEPOSIT BY CLERK OF COURT.

The addition of the word “clerk” to the name of a general depositor does not make a deposit by the clerk of a county court a special one, nor does it

change the liability of the bank. 18ee note at end of casa.

•Rehearing denied.

Appeal from Marion superior court.
J. P. Baker, for appellant.
B. Harrison, W. H. H. Miller, and J. B. Elam, for appellee.

BICKNELL, C. C. The appellee, as receiver of an insolvent banking company, had possession of its property. The appellant, who was the clerk of the courts of Marion county, filed his petition in said superior court alleging that, as said clerk, he held money in trust which he deposited with said banking company, and that when said company became insolvent it held $15,286.51 of said money, deposited by the appellant in the name of “Moses G. McLain, clerk," with the knowledge and consent of said company, and subject to the order of the appellant as such clerk, and subject to the order of said court. The petition prayed for an order directing the receiver to pay said sum of money to the appellant as clerk, or to pay it into court. The appellee demurred to the petition for want of facts sufficient. The demurrer was sustained, and judgment was rendered thereon against the appellant. He appealed to the superior court in general term; there the judgment was affirmed, and he appealed to this court.

The question is, what are the rights of a bank depositor when the bank becomes insolvent? Deposits in bank are either general or special. Upon a special deposit the bank is merely a bailee, and is bound according to the terms of the special deposit; but on a general deposit, without special agreement, the money becomes the property of the bank, and the depositor has no longer any claim on that money; his claim is on the bank for a like amount of money. Coffin v. Anderson, 4 Blackf. 395; McEwen v. Davis, 39 Ind. 109. Upon the insolvency of a bank its general depositors must be paid pro rata. The rule that a trustee may follow trust property as long as it can be traced is not applicable to such a

The addition of the word “clerk” to the name of a general depositor does not make the deposit a special one, nor does it change the liability of the bank.

We need not decide what would be the rule as to trust funds specially deposited and actually on hand and capable of being traced.

The judgment of the court below ought to be affirmed.

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PER CURIAM. It is therefore ordered, on the foregoing opinion, that the judgment of the court below be, and the same is hereby, in all things affirmed, at the costs of the appellant.

NOTE. Cash deposited with a bank as a general deposit ceases to be the property of the de positor, and becomes the property of the bank, creating at ouce the relationship of debtor and creditor. Balbach v. Frelinghuysen, 15 Fed. Rep. 675.

And so, where one leaves money with another for safe-keeping, with the understand. ing, not that the identical money shall be returned to him, but a like sum, it is not a bailment or special deposit, but a general deposit in the nature of a loan. Shoemaker v. Hinze, (Wis.) 10 N. W. Rep. 86.

END OF VOLUME .

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