On Petition Foe a Reheaeing.
Reinhard, J.
— The appellee files a petition for a rehearing, and his counsel have re-enforced it with a vigorous brief. Their contention is that the reply is a departure from the facts pleaded in the complaint, and seeks to make the appellee liable upon a theory entirely different from that disclosed in the same. In this view of counsel we can not concur.
It is true the complaint, in its several paragraphs, proceeds upon the theory of a contract of bailment between the appellant and appellee; but the reply is not inconsistent therewith. The theory of the answer is that, although the appellant left the goods in the appellee’s possession, as bailee, the appellant owned them only in the special capacity of administrator of the estate of Joseph Nichols, deceased, and that the appellant having been superseded as such administrator by Wilson, the appellee purchased the goods from the latter at administrator’s sale, under the order of the court. The appellant in effect says in the reply: It is true I was administrator of Joseph Nichols’ estate when I placed these goods in your care, and such goods were nominally held by me as such administrator, but in fact the estate of which I was then acting in such capacity was not the owner thereof, but other parties were the real owners, and through them I became the owner of the property by relation, and that ownership dates back to the time I placed the goods in your pos*317session. This is but another mode of saying that at the time of the storing of the goods in the appellee’s cellar the appellant was the owner thereof, and is entirely consistent with the theory of the complaint.
A reply is not a departure unless it confesses the answer without alleging sufficient facts to avoid it, and makes a new case. See McAroy v. Wright, 25 Ind. 22. Here there is a confession of the material parts of the answer, but the reply avoids these by the averment of new matter, which is not inconsistent with but explanatory of the complaint. Of course^ if the appellee is an innocent purchaser, his purchase from Wilson will exonerate him. But the reply expressly avers that the appellee had full knowledge of all the facts by virtue of which the goods became the property of the appellant. This is an issue of fact, and can be determined only from the evidence in another trial.
Much stress is placed by counsel in their brief upon the expression of the court in the principal opinion that the title of the property had been litigated in good faith between the estate of Nichols on the one hand, and Fritz, Ross and Stump and others on the other hand. It is insisted that, inasmuch as one of the replevin suits referred to was dismissed by McFadden, this shows that the title to the property was not litigated. If we concede the inaccuracy of the term' “litigated” in connection with the decision of this point in the principal opinion, we still can not admit that the title as between the parties litigant was not fully determined by the result of the suit.
The dismissal was a practical confession by the administrator that he had no claim to the property.
The judgment of return by the court was an adjudication upon the right of possession and ownership between the parties. The estate is fully bound by that judgment as long as it remains in force. The appellee is but the privy in ownership of the estate from which he purchased. He can claim no greater right than the estate had when he purchased *318from it. This is especially true if he knew the facts Upon which the alleged title of the estate was based, as it is averred in the reply he knew.
Filed March 19, 1892.The argument of appellee’s counsel that some third party might have owned the property and not been barred by the replevin proceedings, and that the appellee might have derived title through such third party is utterly untenable. There is no pretence, either in the answer or in the reply, that appellee claimed through some one no.t a party to the actions in replevin. On the other hand, it is clearly asserted in the answer that he claims through the estate of Nichols. That estate, however, was a party to both of those actions and is bound by them, as is also the appellee, the privy of said estate.
We are referred by counsel to the case of Chaplin v. Baker, 124 Ind. 385, as an authority upon the subject of departure. We have examined that case, and do not think it supports the position assumed by counsel. The case cited was an action upon a note and to foreclose a mortgage given to secure it. One of the defendants, a married woman, answered, setting up her suretyship. The reply attempted to show a liability upon a subsequent undertaking, and it was properly held to be a departure. As we have seen, there are none of these elements in the present ease. The reply relates back to the complaint, and characterizes the transaction there set forth as the cause of action by explaining the manner in which the appellee became the appellant’s bailee. There is no similarity between these cases in principle.
Much of the ground traversed in the brief of appellant’s counsel has been gone over in the original opinion, and we see no good reason for retracing the line of discussion there pursued. We are constrained to adhere to the ruling in the former opinion.
The petition is overruled.