828

ed B.'s stock at $100 a share; that each and all of the representations made by B. were false and were known by him to be false when made, and were made for the purpose of defrauding A, out of the sum of $2,000 and for no other purpose, etc.

Nat. Bank v. Nees, 110 N. E. 73, 77; Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198; Cooper v. Schlesinger, 111 U. S. 148, 153, 4 Sup. Ct. 360, 28 L. Ed. 382, 384. B. makes his mistake in assuming that A.'s right to recover under the issues and the evidence is based on the misrepresentation of what he

clear to us that the averments of the complaint indicated, supra, show an entirely different theory, viz., that the action is founded on the false representations made by B. in the purchase of such stock, as to the actual existing agreement and understanding he (B.) had with H. as to the price which he was to pay for such stock.

The errors assigned and relied on for reversal are: (1) The overruling of appellant's | (B.) could purchase II.'s stock for. It seems motion for a new trial; (2) the overruling of his motion that the submission of the cause be set aside and that he be granted leave to file a demurrer to the complaint as amended. The motion for new trial contains numerous grounds, many of which are waived and will not be considered; there being no reference to them in B.'s brief. B. first insists that the representations on which A. relies as furnishing the basis for his recovery, as disclosed by the complaint and the evidence, relate to the price which B. was to pay for H.'s stock and not representations of any material existing fact or facts, and hence that such representations, though false, are not actionable.

[3] In support of such averments and theory there was evidence tending to show that B., after convincing A. that the success of their new corporation depended on getting rid of H. as superintendent, then suggested that this could be done by purchasing II.'s stock, and in response to the suggestion of A. that the purchase be taken up with the board of directors of the corporation, B. represented that the purchase must be made secretly; that he believed he could purchase the stock from H. at par, but for no less; that A. then suggested to B. that he (B.) purchase the stock, to which B. replied that he could not do so because he was not financially able, but that he was the only person who could negotiate the purchase; that A. then requested B. to take the matter up with H, and ascertain whether his stock could be

[1] The sufficiency of the complaint was not challenged below, and hence our consideration of the questions suggested must be from the standpoint of the evidence. However, there was evidence supporting or tending to support each of the essential averments of the complaint above indicated, and hence such averments, for the purpose of the question suggested, may be treated as statements of the facts disclosed by the evidence. It should be stated, however, in this connection that B. insists that the evidence shows without contradiction that H. was theoretical purchased, and, if so, upon what terms and and unpractical, and that B.'s representations in this respect were true. Assuming that this is correct, it is not of controlling influence. The complaint proceeds on the theory that the representations in such respect were made for the purpose only of getting A. in a frame of mind to consider the purchase of H.'s stock; and, this being true, B.'s de sires and purposes in the matter of the real fraud intended to be perpetrated, viz., the sale to A. of H.'s stock, would have been rendered easier of accomplishment if in fact A. knew and recognized the truth of B.'s said representations as to H. The falsity of such representations therefore, though alleged in the complaint, was not essential to A.'s cause of action, and hence proof thereof was not

necessary.

to report the result of his negotiations to A; that a few days later B. reported to A. that he had seen H. (not that he would see him) and had discussed with him the purchase of his stock; that he "had ascertained" from H. that his stock could be bought at par and no less; that he "had arranged" (not that he would arrange) for the purchase of H.'s stock at par.

Upon these representations A. told B. to have the stock transferred to him (A.) and he (A.) would pay for it. B. then suggested in effect that it would not do to have H. transfer the stock directly to A.; that the deal could not be affected in that way; that H. must not know that any one had anything to do with the purchase other than B.; that if H. knew any one else was interested he would refuse to sell; that in order to consummate the deal he (B.) would transfer 80 shares of his own stock to A. at the price he had arranged to pay H. and would then have H. transfer his stock directly to him (B.). Upon these representations and with such understanding A. entered into a contract with B. under which A. purchased and paid to B. the sum of $8,000 for 80 shares of said stock. In other words, the trial court was warranted in finding, under the averments of

[2] Going back to the question or legal proposition, above indicated as the one for which B. contends, it may be conceded that, generally speaking, representations in order to furnish the basis of an action for fraud on account thereof must relate to a material existing fact, and that mere opinions as to value or representations or promises as to what one can or will do in the future will not furnish the basis for such an action. Culley v. Jones, 164 Ind. 168, 171-174, 73 N. E. 94, and cases cited; Smith v. Parker, 148 | the complaint and the evidence offered in supInd. 127, 133, 45 N. E. 770; Judy v. Jester, 53 Ind. App. 74, 86, 100 N. E. 15; Merchants'

port thereof, that the purchase of stock, here involved, was in effect a purchase by A.

from H.; that in making such purchase A. | cases, but is controlled by the principle first made B. his representative and agent in the announced and the cases there cited. negotiations and consummation thereof, and that B. falsely and fraudulently represented to A. that in purchasing such stock he had to pay H. $100 a share therefor, when in fact he arranged to purchase the 81 shares for $6,000.

[4] In the instant case the agreement between B. and A. was to the effect that A. should pay for the stock in question the price paid to H. for such stock, and hence the cost price was made a material and essential part of the agreement, and any sum paid above that amount on account of B.'s misrepresentation of such cost price would be the measure of A.'s damage resulting from such misrepresentations. Bergeron v. Miles, supra; Johnson v. Gavitt, supra; Pendergast v. Reed, supra; Kilgore v. Bruce, supra; Blacks v. Catlett, supra.

[5] It is next insisted by B. that A. had no right to rely on his representations, but that A. should have investigated for himself before buying and paying for said stock. This contention is answered by the averments of the complaint and the evidence in support thereof, to the effect that B. told A. that he alone could negotiate the purchase of H.'s stock; that it would not do to let II. know that any one else was interested in such purchase, and the further averments of the com

It follows that the case is not controlled by the cases relied on by appellant and those cited, supra, but is controlled by that class of cases which announce the following doctrine: A person who agrees to sell to another property at cost price to him and, by false representations as to such cost price, induces the purchaser to pay a price in excess of such cost price is liable to the purchaser for the difference between the actual cost price and the amount paid, even though the property may be worth the amount paid, or more. In such a case the purchaser is entitled to "all the profits of his purchase and contract as he made it, and it is no answer to his action to say, that though the representation was false, yet the actual value of the thing sold is equal to what such false representation induced him to pay for it." Pendergast | plaint showing the mutual interest of A. and v. Reed, 29 Md. 398, 403, 404, 96 Am. Dec. 539; Bergeron v. Miles, 88 Wis. 397, 60 N. W 783, 43 Am. St. Rep. 911; Teachout v. Van Hoesen, 76 Iowa, 113, 40 N. W. 96, 1 L. R. A. 664, 14 Am. St. Rep. 206; Johnson v. Gavitt, 114 Iowa, 183, 86 N. W. 256; Grinnell v. Hill, 1 Cal. App. 492, 82 Pac. 445; | chase. As affecting this question see Kohl Elerick v. Reed, 54 Kan. 579, 38 Pac. 814; Blacks v. Catlett, 3 Litt. (Ky.) 140; Green v. Bryant, 2 Ga. 66; Kilgore v. Bruce, 166 Mass. 136, 44 N. E. 108; McFadden v. Robison, 35 Ind. 24; Miller v. Buchanan, 10 Ind. App. 474, 37 N. E. 187, 38 N. E. 56; Kohl v. Taylor, 62 Wash. 678, 114 Pac. 874, 35 L. R. A. (N. S.) annoted note page 182; Warren v. Miller (Iowa) 99 N. W. 127; Hughes v. Lockington, 221 Ill. 571, 77 N. E. 1105; McLain v. Parker, 229 Mo. 68, 129 S. W. 500.

B.'s second contention is that the evidence fails to show that appellee was damaged because there is no evidence to show the difference between the actual value of said stock and the value thereof if it had been as represented.

While it is the law that false statements as to the cost of property made in representing its value may, in certain instances, constitute actionable fraud, and that in such cases the measure of damages is that indicated by appellant (see Chlwine v. Pfaffman, 52 Ind. App. 357, 100 N. E. 777; New v. Jackson, 50 Ind. App. 120, 95 N. E. 328; Grover V. Cavanaugh, 40 Ind. App. 340, 82 N. E. 104; Beck v. Goar, 180 Ind. 81, 100 N. E. 1; Judy v. Jester, 53 Ind. App. 74, 100 N. E. 15; Boltz v. O'Conner, 45 Ind. App. 178, 90 N. E. 496; Hulett v. Kennedy, 4 Ind. App. 33, 30 N. E. 310), the case at bar, for the reasons already indicated, does not fall within this line of

B. in the success of the corporation in which they each were stockholders, directors, and officers, and that with the view of furthering the interests and insuring the success of such corporation A. trusted B. to represent him and negotiate and consummate such pur

v. Taylor, supra; Dorr v. Cory, 108 Iowa, 725, 732, 733, 78 N. W. 682; Teachout v. Van Hoesen, supra; Culley v. Jones, 164 Ind. 168, 171, 73 N. E. 94, and cases above cited, affirming the proposition that:

"A contracting party may rely on the express statement of an existing fact, the truth of which is unknown to him, but which is asserted by the other contracting party, as a basis for an agreement."

[6] It is contended that A.'s delay in filing his suit is such laches as should bar him from recovering. This contention cannot be upheld. While there may be cases where the laches of a party may be of such "character and under such circumstances, as will bar his right to prosecute his action, in less time than that fixed by the statute of limitations," this is so only in those cases where "the laches are of such a character and under such circumstances as to work an equitable estoppel." Scherrer v. Ingerman, 110 Ind. 428, 433, 11 N. E. 8, 12 N. E. 304, and cases cited. Where, as in this case, the action is one at law to recover damages for fraud, and the situation of the parties has not changed, and the interest of no innocent third party has intervened, a defense of laches founded upon mere delay cannot avail; but the action may be prosecuted at any time within the period prescribed by the statute of limitations. Koons v. Blanton, 120 Ind. 383, 387–389, 27 N. E. 334; Citizens' Nat.

Bank v. Judy, 146 Ind. 322, 43 N. E. 259; necessary that the averment therein in relaPomeroy's Eq. Juris. § 817.

For cther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

7. DAMAGES

at all, as damages, and its rate is controlled by | in the second paragraph of complaint. In the the lex fori. absence of an express agreement, one who [Ed. Note.-For other cases, see Damages, brings to such a service as was rendered by Cent. Dig. § 2; Dec. Dig. 2.] him due care and skill can recover the rea68-INTEREST-CALCULATION. sonable and customary price therefor, but In an action for services, if interest is al- such reasonable and customary fee must lowed by the judgment as damages, it should be calculated from the time the account for services be shown by competent evidence. Proof of was presented for payment and accepted and a the price charged by the complaint, withpartial payment made. out any proof of the value of the service performed, is not sufficient, and does not meet the test. Peck v. Martin, 17 Ind. 115; Board of Com. of Marion County v. Chambers, 75 Ind. 409. Appellee takes the position that as Action by A. Halden Jones against Minnie each paragraph of the complaint contains a L. Johnson. From a judgment for plain-statement of the account sued on, and each tiff, defendant appeals. Affirmed in part paragraph was duly verified, and as the on condition.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 141-143; Dec. Dig. 68.]

Appeal from Superior Court, Marion County; John J. Rochford, Judge.

Mark H. Miller, of Indianapolis, for appellant. Henley, Fenton & Joseph, of Indianapolis, for appellee.

IBACH, C. J.

The

Appellee recovered judgment on two paragraphs of complaint. first paragraph was brought upon an account for services rendered by him as a licensed physician, and the second paragraph was upon an account assigned to him which also covered services as a physician rendered by the assignee, Lyman B. Stookey.

appellee did not introduce evidence to refute falls within the provisions of section 392, the averments of the complaint, the case Burns 1914. The difficulty with this position is that the statute referred to is applicable to defaulted cases, while in the case at bar there was an appearance and an answer in general denial filed, which cast the burden on appellee who claimed the amount sued for in the second paragraph of complaint to prove the value of the services rendered, as was done to support the first paragraph. There is no presumption that the items of an account which is made a part of a plead[1] Appellant first contends that the evi-ing are correct, or, as in this case, that the dence shows that the agreements made with services rendered were worth the amount appellee and said Stookey fall within the statute of frauds, and cites the case of Harris v. Frank, 81 Cal. 280, 22 Pac. 856, to support her position. We do not consider that a parallel case to the one at bar. In that case the evidence showed that appellee was a mere guarantor, while in the present case the evidence shows without, substantial conflict an original contract between the parties. It does not appear, as in the Harris Case, that appellant was to pay any bills contracted by her son, but, on the contrary, it does appear that she as an original promisor contracted to pay the claims both of the physician and the pathologist who rendered services requested by her for her son, when in the state of California, and that credit was given to her and not to her son. Such being the nature of the agreements, they were not void under the statute of frauds, though not in writing. Shaffer v. Ryan, 84 Ind. 140; Hayes v. Shirk, 167 Ind. 569, 78 N.

E. 653.

The evidence fully supports the first pargraph of complaint. There is no dispute about the services having been rendered by appellee, that he charged appellant therefor the sum of $300, that such services were worth that sum, that he was paid on his individual account the sum of $125, leaving a balance unpaid of $175.

[2-5] We are also of the opinion that there is no proof whatever to disclose the value of the services rendered by Dr. Stookey, which claim was assigned to appellee, and sued on

charged, but such facts must be proven, the same as all other facts necessary to be proven to support such causes of action when there is an appearance and an answer denying the right to recover has been filed. French v. Frazier, 30 Ky. (7 J. J. Marsh.) 428; Pfeil v. Kemper, 3 Wis. 315. Our disposition of this branch of the case eliminates the necessity of considering any of the remaining alleged errors directed thereto.

Appellant further contends that the trial court erred in allowing interest as a part of the judgment. It is argued that because the debt sued on was contracted in the state of California, and the services were to be performed there, the legal rate of interest only as allowed in that state would control, and since the statute of California was not pleaded and no evidence showing the legal rate of interest of that state, and there being no provision for the collection of interest under the common law, none should have been al

lowed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The same rule necessarily applies to contracts such as those involved in the present case. In such cases where no interest has been contracted for and no place is fixed for the payment of the debt, the interest recoverable after the breach of the contract is recoverable if allowed as damages and if interest is so adjudged as a part of the judgment, the rate of interest will be controlled by the law of the place of the suit, which in this case was the domicile of the defendant. The interest is not allowable on the theory that it is an incident to the original debt, but because of the delinquency on the part of the debtor and without such interest the claimant would not be made whole. 5 R. C. L. 941, 942, and cases cited.

[7] The account sued on in the first paragraph of the complaint became liquidated when the same was presented for payment and accepted and a partial payment made, and the trial court properly allowed interest at the rate allowable in this state as a part of the judgment.

The judgment is affirmed as to the amount rendered on the first paragraph of the complaint, upon condition that within 30 days from this date appellee enters upon the judg. ment docket of the court below a remittitur of the amount rendered on the second paragraph of complaint, and file the certificate of the clerk of such court with the clerk of this court that such remittitur has been so made; otherwise the cause will be reversed at costs of appellee.

(62 Ind. App. 592)
STAPLES-HILDERBRAND CO. v. METAL
CONCRETE CHIMNEY CO. et al.
(No. 9046.)
(Appellate Court of Indiana, Division No. 2.
May 22, 1916.)

MUNICIPAL CORPORATIONS 347(2) CON-
TRACTOR'S BOND-LIABILITY TO MATERIAL

MAN.

Where the contract and bond for municipal work merely provided that the contractor should furnish and deliver all material, perform all work and labor, etc., the guarantor on the bond was not liable to a materialman, there being on such a bond to a materialman no provision binding the contractor to pay for labor and material, or such language used that without such payment the contract could not be complied with.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 877; Dec. Dig. 347(2).]

Appeal from Superior Court, St. Joseph County; Vernon W. Van Fleet, Judge.

Action by the Staples-Hilderbrand Company against the Metal Concrete Chimney Company and another. From a judgment for defendants, plaintiff appeals. Judgment

affirmed.

Charles Weidler, Orie Parker, and Samuel Pettengill, all of South Bend, for appellant. G. A. Farabaugh and Chas. A. Hagerty, both of South Bend, for appellees.

IBACH, J. Action by appellant against appellees on a bond given by appellee Metal Concrete Chimney Company as principal and appellee United States Fidelity & Guaranty Company as surety, to the city of South Bend to secure the faithful performance and discharge of a contract, whereby the former appellee was to construct a concrete suction well for said city.

The only error assigned is the sustaining of appellees' demurrer to appellant's complaint. It appears from the complaint that appellant furnished materials used in the construction of the well, for which it has not been paid, and that the appellee contractor is insolvent. The only question is whether the appellee guaranty company is liable to appellant on the bond for the price of the materials furnished for and used in the construction of the well. By the terms of the contract with the city, appellee contractor "covenants and agrees to furnish and deliver all the material and to do and perform all the work and labor required to be furnished, done and performed in the construction, erecting and testing of Brick Concrete Suction Well," and that it "shall indemnify and save harmless the city from all claims for labor performed and materials furnished, and shall furnish statisfactory evidence when called for, that all persons that have done work or furnished material for which the city may be liable, have been fully paid." The city is given the option, in case of abandonment or discontinuance of the work, to apply to the payment of labor any money due to the contractor for work done prior to abandonment, and also has the right to retain from money due the contractor sufficient money to pay for any labor or material furnished in the construction of the work, provided satisfactory evidence is not furnished that all such labor and material have been paid for. The city agrees to pay the contractor the prices set forth in the bid of the contract, "as proper compensation for furnishing all materials, tools, appliances, plans, labor, etc., required to construct and fully complete aforesaid work." The bond is conditioned: "Whereas, the said Metal Concrete Chimney Company entered into the foregoing contract with the city of South Bend for furnishing all labor and material for the

construction of a brick concrete suction well: Now, therefore, if the said Metal Concrete Chimney Co. shall well, properly, faithfully and honestly discharge, do and perform all and singular the obligations and things in said contract to be done and performed by the said contractor according to said contract, then said obligation shall be void."

[1] The contract and bond must be construed together. Appellees by their demurrer to the complaint, and the specifications of the memorandum attached thereto, present the contention that there was no agreement to furnish and pay for materials and labor, upon the part of the contractor, so

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