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(161 N.E.)

CITY OF GARY v. Charles W. PROTT and
Jessie Rhodes Prott. (No. 13083.)

of taking an appeal and as to procedure on appeal by said sections 10344 et seq.; section 10347 providing that such diminution, if any, be determined by the court. Appellant filed a motion in the lower court to dismiss Appellate Court of Indiana, in Banc. June 7,

the action on the ground that it was not filed within the time required by the statute concerning such appeals. This motion was overruled. The correctness of this ruling is the only question presented for our consideration.


Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

See, also, 159 N. E. 554.

Crumpacker & Friedrich, of Hammond, and Harry Sharavsky, of Gary, for appellant. Gavit, Hall, Smith & Gavit, of Whiting, for appellees.

NICHOLS, C. J. Affirmed on authority of City of Gary v. Roper, 161 N. E. 674, decided at this term.

DAUSMAN, J., absent.

MON. (No. 12942.) *


I. Trial 194(9), 253(3)-Instruction permitting plaintiff's recovery of deposit in case he merely permitted bank to use account for limited time held not erroneous as mandatory or as omitting affirmative defense.

[3-5] The question, then, which we have to determine, is as to whether the amended complaint related back to the time of filing the original one. If it did, then the motion to dismiss the action because it was not filed in time was properly overruled; otherwise the motion would have been sustained. It is to be observed that both the original complaint and the amended complaint alleged the same facts, and that they prayed for the same relief; the difference between the two being that, in the original, the right relief was sought, but an improper method, that of the appointment of appraisers to ascertain the benefits and damages, was prayed, while Appellate Court of Indiana, in Banc. March 29, the amended complaint prayed that such relief should be determined by the court. There was no demurrer to either of these complaints. The original complaint described the property involved, the ownership thereof, the amount of the assessment against such property, remonstrance against the original assessment, the confirmation of such assessment, together with a demand for such relief as appellee believed himself entitled to. This is all that is required by section 10344, supra. It has been many times decided that the prayer for relief is no part of the pleading which, if otherwise sufficient, is not objectionable although it has no prayer for relief. Vanatta v. Water House, 33 Ind. App. 516, 71 N. E. 159. And the mere fact that a pleading asks for the wrong relief does not vitiate it. McDorman v. City of Terre Haute (Ind. App.) 158 N. E. 257, 259. It is our opinion that the original complaint was sufficient for the relief to which appellee was entitled, and that there was no need of filing the amended complaint. Having filed the same with the same averments as to facts as the original and asking for the

same relief, it did not state a new cause of action, and, in harmony with the general rule, it related back to the time of filing the original complaint. Raley v. Evansville, etc., Co., 45 Ind. App. 649, 654, 90 N. E. 783, 91 N. E. 571.

It follows that the court had jurisdiction of the cause of action, and that there was no error in overruling appellant's motion to dismiss.

The judgment is affirmed.

DAUSMAN, J., absent.

Instruction in complaint seeking recovery for money had and received, that plaintiff, if he merely permitted bank to make loan of his money on deposit for six months period on its own responsibility, was entitled to recover amount of loan after six months where bank had debited his account held not erroneous as mandatory instruction or as ignoring affirmative defense that plaintiff had taken note on which interest was paid.

2. Fraud 35-Alleged loan of account, if made in reliance on bank's false representations that borrower was solvent, authorized lender's recovery from bank, even if lender accepted borrower's note.

Alleged conduct of bank in fraudulently inducing depositor to loan his account through bank on false representations that borrower was solvent, if depositor relied thereon in making the loan, warranted plaintiff's recovery from bank, notwithstanding allegations of answer that note of borrower was delivered to

plaintiff on which interest was paid and ac

cepted by plaintiff, since answer did not establish rescission.

3. Fraud 48-In action for bank's fraud in inducing loan of account, answer alleging borrower's note was delivered to plaintiff and interest paid thereon held insufficient as answer of ratification.

In action by depositor for bank's fraudulent representations as to borrower's solvency, inducing loan of account, answer which alleged that borrower's note was delivered plaintiff, after which borrower paid accruing interest

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied June 19, 1928.

which plaintiff accepted, held not sufficient as an answer of ratification, since there was no allegation that at time of delivery or payment of interest the plaintiff knew of the fraud. 4. Fraud 35-Knowledge is essential element of ratification by person defrauded.

In order to constitute ratification of fraud, knowledge of person defrauded is an essential element.

5. Banks and banking 133-Refusal of bank to pay depositor after expiration of period during which depositor permitted loan from his account warranted depositor's recovery against bank.

Alleged conduct of bank in refusing payment to depositor after six months' period during which depositor had agreed to forego use of his money in order that it might be loaned to third party warranted depositor's recovery against bank for amount of loan, for which plaintiff's account had been debited.

6. Banks and banking 133-Concealment by bank's cashier, requesting depositor to permit bank to loan deposits to third party, that proposed borrower was largely in debt to bank and was insolvent warranted depositor's recovery against bank for loss sustained.

Misconduct of cashier of bank in inducing depositor to permit loan of his money to third party, concealing fact that third party was largely indebted to bank and bank's purpose of procuring depositor's money to pay third party's debt, third party being insolvent, warranted depositor's recovery against bank and officer for any loss sustained.

7. Fraud 66-Depositor, induced by bank to forego use of account by false representations or concealment of borrower's financial status, could recover against bank, notwithstanding special findings of absence of conspiracy and plaintiff's consent.

Where jury found that bank induced depositor to forego use of his deposit for six months to make loan to company already heavily in debt to bank by misrepresenting or concealing borrower's financial status, jury's findings that there was no conspiracy between borrower and bank, and that depositor had consented to the loan and taken notes, with interest, and that bank did not conceal fact that money loaned would be applied on notes of borrower to the bank did not prevent depositor's recovery against bank for amount of loan. 8. Trial 347-Special verdicts are abolished (Burns' Ann. St. 1926, § 598).

Special verdicts are abolished by Burns' Ann. St. 1926, § 598 (Acts 1897, c. 85), providing that, in all actions hereafter tried by jury, jury shall render general verdict, though statute defining special verdict has not been expressly repealed.

9. Judgment 248, 256(2)-Court looks to pleadings, verdict, and jury's answers to interrogatories in determining what is proper judgment (Burns' Ann. St. 1926, §§ 615, 616).

In order to determine what is proper judgment, under Burns' Ann. St. 1926, §§ 615, 616

(Civ. Code, §§ 440, 441), court looks to pleadings, verdict, and answers of jury to interrogatories.

10. Judgment ~256(2)—Judgment for amount required by jury's answers to interrogatories held authorized, where verdict and jury's findings were irreconcilably conflicting as to amount of recovery (Burns' Ann. St. 1926, $ 598; 615, 616).

Where jury's answers to interrogatories in action for fraud in inducing loan required plaintiff's recovery for full amount of loan, but general verdict allowed recovery for only part of that amount, court was authorized in returning judgment for full amount authorized by answers to interrogatories, under Burns' Ann. St. 1926, §§ 615, 616 (Civ. Code §§ 440, 441); special verdicts being abolished by Burns' Ann. St. 1926, § 598 (Acts 1897, c. 85).

II. Fraud ~58 (1)—Verdict for depositor for amount of loan debited from his account held authorized, under evidence of bank's false representations as to borrower and secret use of funds to discharge borrower's debt.

In action against bank for fraud in inducing loan by depositor to be paid over to alleged solvent third party, evidence which indicated that proposed borrower had not applied for loan and that negotiations were carried on secretly by bank in order to discharge debt owing to it from the proposed borrower authorized depositor's recovery for amount of loan which had been debited from his account.

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MCMAHAN, J. Action by appellee Walter G. Lowmon against appellants Earl Park State Bank and James E. Childress, and James R. Barr, Minnie Barr, and Samuel Gant, the last three named being partners in the grain business and trading under the name of the Richland Grain Company.

The first paragraph of complaint was for money had and received. The second, third, and fourth paragraphs, after alleging that appellant bank had been engaged in the banking business, and that appellant Childress had for many years been cashier and the active manager of its business, and that the other three defendants were engaged in the

(161 N.E.)

grain business as partners under the name of the Richland Grain Company, alleged, in substance:

That appellee, who was a farmer with no business experience, had been acquainted with Childress for many years, and had great confidence in his judgment; that on August 8, 1923, appellee had on deposit in the bank, subject to check, more than $6,000; that the Grain Company was then, and for a long time had been, indebted to the bank more than $10,000, which appellants were desirous of having reduced; that Childress, knowing the state of appellee's account with the bank, and for the purpose of using appellee's money for that purpose and to induce appellee to loan through the bank the said $6,000, falsely represented to appellee that the Grain Company was solvent and able to pay all of its debts, and that a loan to it would be safe; that appellants fraudulently concealed from appellee the fact that the Grain Company was largely indebted to the bank, and if appellee made the loan the money would be used to reduce the debt of the Grain Company to the bank; that in order to induce appellee to make such loan Childress represented that the bank stood behind it and guaranteed all loans of its depositors made through the bank and that the bank and Childress would guarantee appellee from loss, but that Childress fraudulently failed to execute a written guaranty; that the Grain Company and the members of the partnership were and for a long time had been insolvent; that appellee not knowing of such insolvency, but believing them to be solvent and relying upon such representations of Childress, consented that Childress should have $6,000 of said deposit to make a loan to the Grain Company; that pursuant to such consent Childress debited appellee's account $6,000, took that sum and credited the same to the indebtedness of the Grain Company to the bank, taking a note purporting to be payable to appellee and which note was retained by appellants and was never in the possession of appellee; and that appellants had after demand refused to honor a check drawn by appellee for said money and had refused to pay the same to appellee. The third and fourth paragraphs are very similar to the second, about the only difference being that they more fully allege facts relating to the insolvency of the Grain Company, its indebtedness to the bank, and the purpose appellants had in inducing appellee to allow it to use his money, and his reliance upon the honesty of Childress in inducing him to consent to the bank using his money.

Appellants filed an answer of denial, and a second paragraph alleging, in substance, that appellee requested appellants to loan the $6,000 to the Grain Company, and that pursuant to this request they made the loan taking a note payable to appellee; that the note was delivered to appellee, after which the

Grain Company paid the accruing interest thereon to appellee who accepted the same. A trial by jury resulted in a verdict of $3,285.94 in favor of appellee. Two sets of interrogatives, one evidently prepared by appellants and one by appellee, were submitted to and answered by the jury. The facts specially found by the jury, in answer to one set of interrogatories, are, in substance, as follows:

Neither the bank nor Childress, on or prior to August 8, 1923, knew the Grain Company was insolvent, but they both believed it was solvent; that on August 7, 1923, the Grain Company had on deposit with the bank, subject to check, $3,293.60, and on the next day it had on deposit subject to check, more than $5,000. On both of said two days the Grain Company owed the bank a note for $3,000, which was then due, but there were no other matured obligations of the Grain Company to the bank on said days. After the $6,000 note to appellee was signed, one of the members of the Grain Company directed the application of the proceeds of that loan by the bank on the indebtedness of the company to the bank. Prior to the signing of the $6,000 note by the Grain Company, there was no understanding between appellants and the Grain Company as to what should be done with the proceeds of the $6,000 loan. Nothing was said about the application of such proceeds until after the $6,000 note was executed. After the $6,000 note was executed by the Grain Company, Childress returned to the bank and after banking hours canceled as paid the notes of the Grain Company held by the bank, and later in the day delivered them to the Grain Company at its offices, and the Grain Company at that time executed a new note to the bank for $1,200. Appellee prior to August 7, 1923, verbally consented that appellants might loan $6,000 of his money in his checking account to the Grain Company for 6 months, at 7 per cent. interest, and in September, 1923, he learned that such loan had been made for him and that his account had been debited $6,000. In the fall or winter of 1923, he learned the Grain Company had executed a note to him for $6,000, and in March, 1924, he received $245 interest on the $6,000 note of the Grain Company, said $245 being paid by the Grain Company. On and before August 7, 1923, appellee had been a customer of the Grain Company and believed it was solvent. The company prior to that day had been indebted to appellee, and its reputation for solvency at that time was good, of which repute appellee had knowledge. In making the $6,000 loan, appellee relied on the representation made by Childress or some one acting for the bank.

In answering the other set of interrogatories, the jury found the following facts:

On August 7, 1923, appellee had on deposit with appellant bank, subject to check, over $6,000. On and prior to that time appellant

Childress was the officer in active charge and management of such bank, and the other three named defendants were partners trading under the name of the Richland Grain Company, and were indebted to the bank by two notes aggregating $8,000, one of which notes was then past due and unpaid, while the other one was not yet due; the Grain Company was then and ever since has been insolvent and in April, 1924, made an assignment for the benefit of its creditors. Appellants did not give appellee any information that the Grain Company was indebted to the bank before the money was taken out of appellee's account, and appellee did not have any knowledge of that fact. Before commencing this action appellee drew his check for $6,000, and payment of same was demanded of the bank during banking hours. About August 6, 1923, appellee, when in the bank, informed Childress that the bank could loan his $6,000 on its own responsibility for 6 months and that he would not check against any part of the $6,000 for 6 months.

Appellee, at or before the bank placed to his credit $245, did not know that his money had been paid by Childress on the notes of the Grain Company to the bank, nor did he at that time know the Grain Company was insolvent. When Childress and the bank debited appellee's account $6,000, they applied that sum directly on the debts of the Grain Company to the bank.

The $6.000, with interest at 6 per cent. to date of the verdict, amounts to $6,843. The $245, with 6 per cent. interest thereon from the time it was credited to appellee's account to date of the verdict, amounts to $271.12, and when the $271.12 is deducted from the amount of the $6,000 on deposit, plus interest, the balance is $6,571.88. Childress acting for the bank stated to appellee that the Grain Company was good and had $100,000 worth of property in the clear. Appellants did not conceal from appellee that, in case his money was loaned to the Grain Company, it would be applied by appellants on the notes of the Grain Company to the bank. The two appellants and the other three defendants in what they said and did were not all acting together to obtain appellee's money to pay $6,000 of the debts of the Grain Company to the bank out of the money of appellee then on deposit with the bank.

Appellants' motions for a new trial and for judgment on the interrogatories and answers thereto were overruled, after which a judgment for $6,571.88 was rendered for appellee; hence this appeal.

[1] Instruction No. 1, given at the request of appellee, related to the issue presented by the first paragraph of the complaint. It told the jury in effect that, if it found Childress recommended that appellee make a loan of $6,000 to the Grain Company, and that appellee declined so to do, but informed appellants that the bank could make a loan of his mon

ey to the Grain Company for a period of 6 months after August 7, 1923, on its own responsibility, appellee would forego the use of the money and not draw checks against it for six months, and if it further found that the bank, or Childress acting for it, on said day debited appellee's account in the sum of $6,000 and loaned that sum to the Grain Company, and if at the expiration of 6 months thereafter appellee drew his check on the bank and demanded payment from the bank, the jury should return a verdict for appellee for the $6,000, plus interest, and less any amount which had been paid thereon.

Appellants contend the court erred in giving this instruction, for the reason that it is mandatory in form and ignored the affirmative defense set up in the second paragraph of answer and the evidence introduced relative to that defense. Appellants say this instruction did not require the jury to find any fact that would operate as a bar to or have prevented the full force and effect of their defense. The authorities cited by appellants in support of this contention are cases where the court discussed the effect of a mandatory instruction where a necessary element to warrant a recovery had been omitted from the instruction. One of the cases cited by appellants is Indianapolis Traction Co. v. Mathews, 177 Ind. 88, 97 N. E. 320. The others are of like character. Appellants make no claim that any fact necessary to a recovery was omitted from this instruction.

The same objection is made to instruction No. 2 and the same authorities cited. What we said in relation to instruction No. 1 applies to instruction No. 2.

[2-4] In instruction No. 4, the court set out the material allegations of the second, third, and fourth paragraphs of the complaint, and told the jury if they found such facts proven by a preponderance of the evidence and that appellants fraudulently took appellee's money to pay the debt of the Grain Company to the bank, as alleged, their verdict should be for appellee without any reference to whether appellant took a note of the Grain Company or not.

The objection made to this instruction is that all facts therein enumerated might have been proven, and that the jury might also have found that the note was taken in appellee's name at his direction and was accepted by him, and the transaction completely confirmed and ratified by him as alleged in the second paragraph of answer. This contention of appellants cannot prevail. The sufficiency of the answer was not tested by demurrer, and was clearly not sufficient as an answer of ratification in that there is no allegation that appellee, at the time it is alleged the note was delivered to him and when the interest thereon was paid to and accepted by him, had any knowledge of the fraud that had been practiced on him as alleged in the com

(161 N.E.)

plaint. We need cite no authorities in support of the proposition that knowledge is an essential element of ratification. There is no claim that there is any evidence tending to supply the element of knowledge, and without that appellee would have been entitled to a recovery, though all of the allegations of the answer had been proven.

[5, 6] Instruction No. 5, concisely stated, is: That appellee had introduced evidence which he claims shows appellants applied to and requested him to make a loan of the $6,000; that appellee declined so to do at his risk, but told appellants if they wanted to loan it to the Grain Company at their risk, he would forego the use of his money for 6 months; that Childress acting for the bank took the money out of appellee's account and applied it to the debts of the Grain Company to the bank, and when appellee 6 months thereafter demanded his money from appellants, payment was refused. The jury were then told that if such facts were proven by a preponderance of the evidence, appellee was entitled to a verdict. The court also told the jury that appellants claimed appellee applied to them to find him a borrower for his $6,000, and that they named certain prospective borrowers, among whom was the Grain Company, and that appellee selected that company and requested appellants to loan it his money, and that the loan was made at his request, a note being taken payable to appellee and signed by the Grain Company. As bearing on this theory of appellants, the court further instructed the jury in substance that, if the claim of appellants as outlined was established by the evidence, if the jury also found appellant bank was the banker of appellee and Childress was its cashier, and that appellee consulted the cashier as to making loans, had confidence in him, and relied upon him to give him honest and disinterested advice looking to his best interest,

it was the duty of appellants to act in good faith and to give him disinterested and honest advice; that if they did not act in good faith in giving him advice, but concealed the fact that the Grain Company was largely in debt to the bank; and that in recommending and negotiating the loan to the bank they acted in bad faith in suppressing the truth in the interest of the bank so far as to procure such money to pay the debt of the Grain Company to the bank, taking appellee's money when the Grain Company was insolvent, appellee would be entitled to recover for any loss sustained.

The facts as enumerated in this instruction, if proven, were sufficient to warrant a recovery, though all the facts alleged in the answer had been proven. There are, as before stated, no facts proven sufficient to establish ratification. There is no claim that the defense set up in the second paragraph of answer is sufficient upon any theory other than ratification, and it is not good as an answer of ratification.

There was no error in the giving of any of the above instructions.

[7] Appellants insist that, since the jury found specifically: (1) They did not conceal the fact that in case his money was loaned to the Grain Company it would be applied on the notes of that company to the bank; (2) there was no conspiracy between them and the Grain Company; (3) there was no prior understanding between them and the Grain Company as to what should be done with the $6,000; and (4) the consent of appellee to the loan, the making of the notes payable to appellee, his knowledge of the loan, and the debiting of his account in September, 1923, and his knowledge that the note had been made to him with his receipt of $245 interest-the court erred in overruling their motion for judgment on the answers to the interrogatories.

It is not necessary to again repeat the allegations of the complaint as to the fiduciary relationship existing between appellants and appellee, the alleged representations and concealments made to induce appellee to loan his money, the conditions under which appellee informed appellants they could loan the money on their own responsibility and that he would forego the use of the same for 6 months, and the allegation that he was induced to make the loan by reason of the fraud of appellants. The facts found can all be true, and enough facts remain to sustain the general verdict for appellee. The facts found do not, as a matter of law, show a ratification of the fraudulent acts as found by the general verdict. It is not necessary that there should have been a conspiracy between appellants and the Grain Company. The court did not err in overruling appellants' motion for judgment.

Did the court err in rendering judgment in favor of appellee for $6,571.88? Appellants call attention to section 615, Burns' 1926, be

ing section 440 of the Civil Code, which pro

vides that:

"When a trial by jury has been had, and a general verdict rendered, the judgment must be in conformity to the verdict."

And section 616, Burns' 1926 (section 441 of the Code), provides that:

"Where there has been a special finding on particular questions of fact, the court shall render the proper judgment."

Section 598, Burns' 1926 (Acts 1897, p. 128, c. 85), is as follows:

"In all actions hereafter tried by a jury, the jury shall render a general verdict, but in all cases when requested by either party, the court shall instruct them when they render a general verdict to find specially upon particular questions of fact to be stated to them in writing in the form of interrogatories on any or all the issues in the cause, and this shall be the only form of verdict submitted to or rendered by the jury in the cause: Provided, the provisions

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