58 Ind. App. 410 | Ind. Ct. App. | 1915
This action was begun by appellee against appellant in the circuit court of Grant County, to recover damages, growing out of an alleged breach of a contract for the sale of real estate. The venue was changed to the Howard Circuit Court, and the cause there tried by a jury. A proper understanding of the questions presented by the appeal to this court requires a statement of the case, as. disclosed by.tbe record, with some detail.
On February 21, 1910, appellant and appellee entered into a written contract, whereby appellant sold appellee 43 feet off the south side of lot No. 5 in block 25 in the original plat; also lot No. 187, in Forbes Addition, all in the city of Marion, Grant County, Indiana; and for which, and in consideration therefor, appellee agreed to assign and transfer to .appellant $15,000 in par value of the. capital stock of The Brown-Williams Company, a mercantile corporation in the above named city, and to' execute a mortgage on the first specified and described real estate, to secure outstanding notes aggregating $2,750, which he agreed to pay as part of the purchase price of that real estate; all conveyances and transfers necessary, to be made on or before March 1, 1910. This contract contains the further stipulation or covenant, which we set out verbatim:
*412 “And the said party of the first part agrees to. make the conveyances unto the second party, of the said described real estate, on or before March 1, 1910, and agrees that said party shall have a good and merchantable title, free and clear of all liens and encumbrances, except the taxes payable in 1910 and thereafter.”
Other instructions and rulings of the court in excluding certain offered testimony are called in question under this assignment of error, but in view' of our holding, they need not be considered.
Per Curiam. — The foregoing opinion was prepared by Powers, J., and is now adopted by the full court.
Note.—Reported in 108 N. E. 252. As to measure of damages for breach of contract by vendor to convey, see 17 Am. Rep. 687; 106 Am. St. 963. See, also, under (1) 39 Cyc. 2089; (2) 17 Cyc. 653, 613; (3) 39 Cyc. 1632, 1208, 2081; (4) 31 Cyc. 101; (5) 1 Cyc. 734; Actions 1 C. J. §130; (6) 13 Cyc. 616; (7) 1 Cyc. 343; Accord and Satisfaction 1 C. J. §120; 39 Cyc. 2097; (8) 39 Cyc. 2098, 2102; (9) 39 Cyc. 2103; 38 Cyc. 1602, 1604.