Bradley v. Osborn

ADAMS, P. J.

By the original complaint filed in this action, insofar as its allegations are pertinent to this appeal, plaintiffs sought to recover from defendant damages for the conversion of certain personal property of the value of $654.50 which it was alleged defendant had sold to plaintiffs. On the day of the trial the complaint was amended without objection, by adding a count which recited that defendant, having offered to sell said personal property to plaintiffs, did, with intent to deceive and defraud plaintiffs, falsely and fraudu

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lently represent to them that she owned said property; that plaintiffs relied upon said representations and purchased the property; but that in fact defendant knew said representations were false and that the said property was owned by other persons. ■

The action was tried by the court sitting without a jury, and resulted in a judgment for plaintiffs in the sum of $653.53. The findings recite that on the date of the agreement entered into between the parties, defendant, with intent to deceive and defraud plaintiffs, falsely and fraudulently represented to them that the furniture was the property of defendant, that plaintiffs relied upon such representations; that in fact, as defendant well knew, said representations were false and untrue and said furniture was not the property of defendant; also that as to part of said furniture sold to plaintiffs, defendant herself took and converted same to her own use.

Judgment was entered on May 3, 1947, and on May 24th, defendant filed a motion to set aside the judgment on the ground that it was taken against her through inadvertence, surprise and excusable'neglect. Affidavits in support of the motion were filed, as were counteraffidavits by plaintiffs, and a hearing was had. The motion was denied, and this appeal was taken from the judgment and from the order denying the said motion.

The record shows that by the agreement between plaintiffs and defendant Osborn the latter sold to plaintiffs certain real property consisting of about two acres of land and the buildings situated thereon. One of said buildings was a store with two living apartments in the rear which constituted a part thereof, and the others, situated on the rear of the lot, consisted of five units referred to in the record as “cabins.” The apartments in the store building and the cabins were all furnished. Defendant executed a bill of sale which covered “personal property situated on the land of the first party . . ., described as follows, to wit: furniture in cabins, service station tanks, four in number, store furniture and fixtures, pumps and equipment.”