Klein v. Ninde

91 N.E. 611, 45 Ind. App. 672, 1910 Ind. App. LEXIS 240

• Court: Indiana Court of Appeals
• Decided: April 20, 1910
• Docket: No. 6,762
• Status: Published

Opinion

Myers, C. J.

This action was commenced before a justice of the peace. From the justice an appeal was taken to the Allen Circuit Court, and from that court the venue was changed to the conrt below.

Appellee purchased from appellant, a fur dealer, one Persian lamb fur jacket, for which he paid appellant an agreed, price. It was claimed by appellee that appellant fraudulently represented the quality of the material of which the garment was made, and that, upon a brief use, the jacket was found to be made in part of damaged skins. Whereupon appellee immediately returned it to appellant, and left it in his possession, where it still remains, and demanded the return of the purchase price, which appellant refused.

Upon request the trial court made a special finding of facts and stated conclusions of law thereon.

Appellant’s motion for a new trial was overruled, and this ruling and that the court erred in its conclusions of law are the errors assigned.

1. A rescission of the contract, on the ground of fraud, was a question presented by the issues, and it is insisted by appellant that fraud was not found as a fact. The court found “that defendant was guilty of fraud in making said sale to plaintiff, and in making said contract with plaintiff, and that plaintiff was induced by said, fraudulent representations to enter into said contract and to pay his money as aforesaid.” Other findings show material representations made by appellant to appellee as an inducement for the latter to purchase the jacket; that such representations were relied on by appellee, and that they were fraudulently and falsely made. The findings are against appellant’s contention.

2. The only other point relied on by appellant is that the findings were not supported by sufficient evidence.

3. We have carefully read the evidence as presented to us by the record, and, without taking the space to set out a synopsis of it in this opinion, it is sufficient to say that it was all oral, and, in most part, exceedingly conflicting. It is not for this court to settle conflicting testimony. Seiberling & Co. v. Torler (1905), 165 Ind. 7. Nor will this court disturb the decision of the trial court because of insufficient evidence, unless the evidence most favorable to apellee, including all legitimate and reasonable inferences which can be deduced therefrom, leaves unsupported an essential fact to sustain the decision of the court or verdict of the jury. Heath v. Sheets (1905), 164 Ind. 665.

The evidence is amply sufficient to sustain the decision of the court. Judgment affirmed.