dissenting.
While conceding that MFC would not be entitled to recover if DiSilvestro had changed her position to her prejudice so that it would be inequitable to require her to make restitution, the majority opinion then proceeds to ignore, not merely reweigh, the evidence. Paraphrasing ancient legal bromides, the majority bases the rationale for its conclusion solely upon the extraordinary statements that "we would be encouraging payees to hastily convert such receipts into tangible personal property in order to avoid a clear equitable duty," and "we should not adopt a principle of law which encourages a race to furniture and appliance stores." At 385.
Indiana courts have not considered whether the application of money paid under a mistake of fact to purchase tangible property constitutes a detrimental change of position. In support of its argument that DiSilvestro has not detrimentally changed her position, MFC cites Ohio Co. v. Rosemeier (1972), 82 Ohio App.2d 116, 288 N.E.2d 326. In Rosemeier a stockbroker mistakenly sold shares of a California corporation instead of the customer's unlisted stock of little value in a similarly named Colorado corporation. Before the mistake was discovered the customer had applied the proceeds of the sale to the payment of an existing mortgage on her home and other debts. In determining whether there had been a detrimental change of position, the Ohio Court of Appeals noted that the customer merely converted the cash into a paid mortgage and retained the value originally represented by the mistaken payment. The court held that such an expenditure did not constitute 2a detrimental change of position. 288 N.E.2d at 329. Rosemeier cited with approval Donner v. Sackett (1916), 251 Pa. 524, 97 A. 89.
In Donner the customer alleged he had detrimentally changed his position due to the fact that he had used the proceeds of the sale to pay some of his debts. The court rejected this contention, pointing out that the customer had a duty to pay his debts regardless of whether he sold or kept *386the stock. The court held that the customer would not be damaged by being compelled to make repayment. 97 A. at 90. Likewise, in Castock Corp. v. Bailey (1985), 128 Misc.2d 1068, 492 N.Y.S.2d 921, the court held the discharge of a debt or the expenditure of money which was otherwise required did not constitute a detrimental change of position sufficient to excuse repayment. 492 N.Y.S.2d at 922.
Under these cases MFC maintains Di Silvestro did not change her position to her detriment because she retained the value of the money by purchasing home improvement equipment. I disagree. In each of the cases relied upon by MFC the courts held that the expenditure of money paid under a mistake of fact to discharge a debt did not constitute detrimental reliance. The underlying rationale of these cases is that an individual who receives money under a mistake of fact is not excused from repayment where he has expended the money in a way which he was otherwise required to. In each of the cases discussed above the defendant had applied the money received to the payment of an existing mortgage or to pay off other pre-existing debts.
In this case the evidence reveals that MFC is a professional stockbroker with connections of some sort in New York. In reliance upon MFC's professed expertise in stock matters, DiSilvestro sold her stock through MFC, upon MFC's terms, and upon MFC's dictated price. Without any knowledge of MFC's self-induced negligence she spent the money and it is gone. Under the majority's unfortunate ruling, DiSilvestro will now have a judgment lien upon her residence, and if she is unable to pay it she will lose her home upon an execution sale. Absent MFC's negligence, there would have been no sale, no purchase of improvements, and no judgment lien. It is to be emphasized that this is not the payment of an old debt, but the incurrence of new obligations in reliance upon a misplaced trust in MFC. If the facts of this case do not show a detrimental change of position, I am at a loss to know what facts would so qualify.
The majority has ignored the well established rule of appellate review that we do not reweigh the evidence or adjudge the credibility of the witnesses, such being the function of the trial court. In this case it was for the trial court, sitting without a jury, to decide whether or not DiSilvestro had changed position to her detriment. It decided that issue in the affirmative. The majority has now reweighed the evidence 'in clear violation of its appellate function.
I support the rule that would protect hapless citizens from the inexcusable mistake of professional brokers, and would affirm the decision of the trial court.