48 Ind. App. 541 | Ind. Ct. App. | 1911
Lead Opinion
This action was instituted by appellee to recover from appellants the sum of $3,019.95, with interest from December 7,1891, alleged to have been paid by appellee on account of the improvement of Fourteenth street, in Englewood addition to the city of Anderson. Upon issues formed, the cause was tried by the court, and, by request, a special finding of facts was made, and conclusions of law were stated thereon in favor of appellee. Over appellants’ motion for a new trial, judgment was rendered, that appellants take nothing by the cross-complaint, and that appellee recover on his complaint.
Appellants, by their assignment of errors, seek to question the sufficiency of various pleadings, and, under their motion for a new trial, the sufficiency of the evidence to sustain the special findings, and certain rulings on the exclusion of evidence.
“Anderson, Indiana, August 9, 1891.
Received of Jacob H. Harter, $3,019.95, on account of Fourteenth street pay-roll, to draw interest at the rate of six per cent from December 7,1891.
Bradley, Backus and Cooper, per A. F. Bradley. ’ ’
That until August 9, 1892, the money needed for expenses connected with making said improvement was advanced by appellee, part of the time to Bradley and part of the time to Stout; that during the time of the first contract, a partnership existed between Bradley, Stout and McCoy; that after the purchase by Bradley of the interest of McCoy, a noncommercial partnership existed between Bradley and Stout, until Cooper was brought into the company; that from the time of the execution of the first contract with Cooper, until the contract was made with Backus, a noncommercial partnership existed, that involved all the interests of Bradley, Stout and Cooper, and their respective obligations and duties in and pertaining to said real estate and said contract; that from and after the execution of said contract between Brad
Judgment affirmed.
Rehearing
On Petition for Rehearing.
Appellants also claim that the court erred in failing to- determine whether the special finding of facts sustains the first conclusion of law stated, which is as follows: “That the law is with plaintiff, and he is entitled to recover from defendants the sum of $4,500, together with his costs and charges laid out and expended in this action, with relief from valuation and appraisement laws.” Appellants concede that the vital and controlling question is presented by the facts found and the conclusions of law stated. The questions raised by this petition for a rehearing were presented in the original briefs, and were considered by this court. We quote from the original opinion: “Such being the case, the facts found by the court fully sustain both the conclusions of law. ’ ’
It is further insisted by appellant, that the provision in the contract for the improvement of Fourteenth street was not an independent contract, and that the money paid by appellee was not to be repaid until after the land contract had been disposed of. The contract between the parties stated particularly that the land — about fifty-eight acres, the actual amount to be determined thereafter — was sold by appellee to appellants for $1,000 an acre. It also contained the provision that if the land was not paid for, in the manner specified, within three years, appellants were to execute their note and mortgage to appellee for the unpaid balance of the agreed purchase price, and he was to convey to them the land remaining unsold. We find no mention that any money paid out by appellee for the improvement of Fourteenth street was taken into consideration in the final settlement for the sale and purchase of the land. The only manner in which the improvement of Fourteenth street is referred to in the contract, is that appellee was to make such improvement, and charge the expense thereof to the buyers of the property. There is no uncertainty in this contract, and it cannot be successfully claimed that the sum of money advanced for such improvement is to be taken as a part of the purchase price of the real estate, or is to -be considered in closing up the agreement relating to the sale thereof.
It also appears from the findings, that when appellant Cooper became one of the company, he, together with ap
“It is further agreed that'said Bradley and Stout will assume and pay all bills of every kind for surveying and platting, and for recording plats, etc., contracted by them up to this time, except the bills for advertising in the newspapers in Anderson, which bills are to be paid by the three parties hereto, each paying a third thereof, and likewise in the future, each party hereto is to furnish and pay a third of all expenses contracted in laying out said lands, grading streets, advertising and selling lots, and all other expenses connected with the selling of said land.”
In addition to this, the findings show that when Backus bought into the firm, the following agreement was entered into between the appellants:
“It is further agreed that said Stout is to pay his share of the bills due and debts contracted up to this time, except the debt contracted for the improvement of Fourteenth street, running through said land, and all bills made in thé future are to be paid in equal amounts by Bradley, Cooper and Backus.”
It must be conceded that the debt relative to the improvement of Fourteenth street was one to be paid to appellee by appellants, in addition to the land when the improvement was completed. This is fully found in the court’s findings and in the record.
The court finds that the money, by means of which said street was improved, was advanced by appellee to appellants Stout and Bradley, before appellant Cooper became one of the firm. After Backus and Cooper entered the firm, said money was paid out by Bradley, for the improvement of the street. When the street was completed, and the cost thereof was known and paid, Bradley executed the following instrument to appellee:
“Anderson, Indiana, August 19, 1892.
Received of Jacob H. Harter $3,019.95, drawing interest at six per cent from December 7, 1891.”
Petition for rehearing overruled.