Bixel v. Bixel. Appellee's contention is, that the gravamen of the action is the wrongful conversion of the property, and not of the proceeds of the sales thereof, and that hence appellant can not recover in this action, because it is not shown that the possession and sale of the property were wrongful. distinct forms of action, this But for the code abolishing would be an action of trover. in order to recover, must show that the property described in the declaration has been wrongfully converted by the defendant. It has been said that where there has been such a conversion by a sale of the property, the plaintiff may maintain trover, or he may dispense with the wrong and suppose the sale made by his consent, and bring an action for the money for which the property was sold, as money received to his use. Cooley Torts, pp. 92-3; Murray v. Burling, 10 Johns. 172. Both of these remedies could not be sought in the same action. Palmer v. Jarmain, 2 M. & W. 282. The holding in that case is correctly stated in the syllabus, as follows: "If a party, authorized by the holder of a bill of exchange to get it discounted, and to apply the proceeds in a particular way, does get it discounted, but misapplies any part of the proceeds, he can not be sued in trover for the bill, but must be sued for money had and received." The case of Goss v. Emerson, 3 Foster (N. H.) 38, was for the alleged conversion of promissory notes. The notes were placed in the hands of the defendant as collateral security. He transferred the notes to another, who collected them. It was held, that as the defendant came rightfully into the possession of the notes, and had a right to transfer his interest in them, he could not be made liable for what had been collected upon them in an action of trover for their wrongful conversion. It was said: "It is the written instrument, and not the money due on it, the security and not the debt,. that is the subject of the action." See, also, 6 Wait Actions and Def., p. 183; Hodges v. Lathrop, 1 Sandf. 46; Kellogg v. Fox, 45 Vt. 348. Bixel t. Bixel. not opposed to the In that case it was The case of Laverty v. Snethen, 68 N. Y. 522 (23 Am. R. 184), cited by counsel for appellant, is above cases, but in harmony with them. said: "The result of the authorities is that if the agent parts with the property, in a way or for a purpose not authorized, he is liable for a conversion, but if he parts with it in accordance with his authority, although at less price, or if he misapplies the avails, *** he is not liable for a conversion of the property, but only in an action on the case for misconduct." If a person, having authority from the owner to sell the property and apply the proceeds, sells the property, and misapplies or converts the proceeds, he is liable for such misapplication or conversion, but does not became a wrong-doer ab initio. In the possession and sale of the property, appellee was in no way a wrong-doer, because he was acting under authority from appellant. His wrong, if he was in fact guilty of any wrong, was in not applying the proceeds of the sale as directed, and that wrong was subsequent to the possession and sale. He is not, therefore, liable for having converted the property. As we have said, the code consolidated all forms of action into one, denominated a civil action, but that does not affect the remedy, nor does it authorize a recovery in any case beyond the case made by the complaint. The code requires that the complaint shall contain a statement of the facts constituting the cause of action, in plain and concise language (R. S. 1881, section 338), and it has always been held that the plaintiff must recover secundum allegata et probata, or not at all. Jeffersonville, etc., R. R. Co. v. Worland, 50 Ind. 339; Paris v. Strong, 51 Ind. 339; Boardman v. Griffin, 52 Ind. 101; Louisville, etc., R. W. Co. v. Godman, 104 Ind. 490 (494); Brown v. Will, 103 Ind. 71; Hasselman v. Carroll, 102 Ind. 153; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160. In this case, the complaint charges a conversion of the Bixel v. Bixel. property and nothing more. There is no charge nor intimation, that appellee converted the proceeds of the sale of the property. There not only having been no proof of a conversion of the property, but proof to the contrary, appellant was not and is not entitled to recover. For the purpose of showing that appellee had not applied the proceeds of the sale of the property as directed, appellant offered to prove by his own testimony the amount of his indebtedness when he left, and the amount when he returned, after appellee had sold the property. There was no error in excluding the offered testimony, for the reason that it was immaterial, there being no issue to which it was applicable. Appellee's answer was in the nature of an argumentative denial, and in no event would it change the case as made by the complaint. See Leary v. Moran, 106 Ind. 560. The court below adopted appellee's theory as to the nature of the case, and charged the jury, that if they should find from the evidence that appellant placed the property in the care and custody of appellee, with instructions to sell it and apply the proceeds to the payment of his, appellant's, debts, and that appellee sold it, there could be no recovery in appellant's favor, although appellee may have failed to apply the proceeds as directed; in short, that under the allegations of the complaint, appellant must recover for a conversion of the property or not at all, and that a failure to properly apply, or a misapplication of the proceeds of the sale of the property, did not amount to a conversion of the property. These instructions were all proper and applicable to the case as made by the complaint and the evidence. Appellant's instructions upon the opposite theory were properly refused. Complaint is made that the court did not fully and definitely define to the jury the meaning of the term conversion. If appellant desired fuller instructions, he should have asked them. Powers v. State, 87 Ind. 144. It is contended further, that the judgment against appellant for costs should be reversed, because the evidence shows Mowrer . The State. that appellee, without authority so to do, sold some of appellant's wheat in 1879. A sufficient answer is, that the complaint does not charge any such sale, and the evidence shows that the same was authorized or ratified by appellant. We have examined all of the questions discussed by appellant's counsel, and find no error presented by the record that would justify a reversal of the judgment. Judgment affirmed, with costs. Filed Oct. 5, 1886. No. 13,168. MOWRER . THE STATE. INJUNCTION.-Contempt.― Jurisdiction of Special Judge.-A special judge, appointed to hear and determine a particular case, has jurisdiction to punish a party for a violation of a restraining order previously granted by the regular judge. SAME.-Interference with Status of Personal Property.-- When no Contempt.-Where, during the pendency of an action respecting the ownership and custody of a piano, "the defendant and all other persons" are enjoined from removing it from the defendant's house, where it is situate, but the defendant, before the action is determined, and without reporting his intention to the court, rents his house and moves to another State, leaving the piano in the house, but making no arrangement for its storage, the plaintiff may remove the instrument to his own house for safe-keeping without being guilty of contempt. From the Henry Circuit Court. J. Brown, W. A. Brown, J. B. Julian and J. F. Julian, for appellant. NIBLACK, J.-On the 10th day of April, 1886, John M. Mowrer filed his complaint in the court below against Asa Hatch, averring that he and the said Hatch were jointly the owners of a piano-forte of the value of $400, each owning a one-half interest therein; that said piano was then, and for Mowrer v. The State. four years then last past had been, in the exclusive possession of him, the said Hatch; that the said Hatch would not consent that he, the plaintiff, should at any time have the possession or use of such piano, or agree to sell or rent the same; that the rental value of the piano was and had been $60 per year; that said piano was detained at the residence of Hatch at Newcastle, in Henry county. The plaintiff demanded that a receiver be appointed to take possession of the piano and to make sale thereof; also an accounting between the parties. On the 17th day of April, 1886, the parties appeared before the judge of the Henry Circuit Court at chambers, in Newcastle, when an order in the cause was entered in the following words: "It is ordered by the court that the property in controversy in the above cause be and remain where it now is until the further order of the court, and that the defendant, and all other persons, be restrained and enjoined from removing the same from the place where it now is, or interfering with it, until the determination of said action, or the further order of the court." At the ensuing term of the circuit court above named,. the regular judge declined to preside in the cause, and appointed Thomas B. Redding, Esq., a practicing attorney of that court, special judge to hear and determine the controversy between the parties. Redding qualified and assumed jurisdiction of the cause. At a later day in the term, William O. Barnard and Eugene H. Bundy, as attorneys for Hatch, filed their affidavit in the court below, charging that Mowrer, the plaintiff, had, on the 20th day of May, 1886, caused the property in controversy to be removed from the house and residence of the defendant Hatch, where it was ordered to be left and to remain, to the house and residence of him, the plaintiff, and that the plaintiff then had the possession of, and detained such property without right and in violation of the order previously made in the cause by the regular judge, as herein above stated. |