33 Ind. App. 57 | Ind. Ct. App. | 1904
Lead Opinion
Appellees were plaintiffs below. The complaint was in two paragraphs. The first was withdrawn. The second alleged, in substance, that appellee Kelley, for the benefit of himself and co-appellee Hannah, on April 28, 1902, entered into a written contract with appellant by which appellees sold to the appellant a farm in Monroe township, Putnam county, Indiana, which was known to the parties to said contract as the “Samuel II. Hillis farm,” and contained 159¾- acres. Possession of the farm was reserved until December 25, 1902. The agreed purchase price was $5,200, to be paid in the following manner: (1) The appellant was to deliver immediately to the appellees her grocery, delivery wagon, horse, and harness, which she had in the city of Greencastle, which was to be taken as a part payment of $2,000 of the purchase price of the farm. (2) The sum of $1,G25 was to be paid in cash u]5on the delivery of the deed. (3) The sum of $1,625 was to be evidenced by the appellant’s note due December 25, 1902, and to be secured by mortgage upon the real estate. The appellees Were to furnish an abstract of title to the land as soon as it could reasonably be compiled, and to convey the real estate by a warranty deed. The plaintiff alleges that the contract of the parties was reduced to writing, and that the scrivener, in describing the farm, by mistake described it as being in range number five west, when in truth and in fact the farm was in range number four west, and that the parties to the contract signed the same with the understanding that it described the farm known as the Samuel H. Hillis farm, situate in Monroe township,
The appellant answered in two paragraphs, the first being in general denial. The second paragraph of the answer admitted the execution of the contract, but alleged that under the terms of the contract the real estate was to be conveyed free and clear of all encumbrances and liens, as shown by the abstract of title which was to be furnished, and that at the time the deed was tendered there was a tax lien against the property amounting to $17.59, as shpwn by the abstract of title.
At the request of the appellant, and over the objection of the appellees, a jury was called. The jury returned a verdict for the appellees. The court, of its own motion, adopted the verdict of the jury as a finding of the amount due the appellees from the appellant, and found that the sums so found by the jury were for the balance of the unpaid purchase price of the real estate described in the appellees’ complaint; that the appellees were entitled to have a vendor’s lien on said real estate for the said sum of $1,625, now due, and for the further sum of $1,625 to
It will not be necessary to consider all the errors assigned in this appeal. Counsel differ as to the theory of the second paragraph of the complaint. Counsel for appellant state that it was formed on one theory, the issues made upon another, and the cause tried upon still another; that the court construed it, in passing upon the demurrer, as an action at law on the promise in the contract to pay the purchase price for the land in question, and not for specific performance. For appellees it is contended that the theory of the complaint was to recover an unpaid balance of the purchase money.
It is the recognized rule that the theory of a pleading is to be determined from its controlling averments, and not by the name given it. It is also the rule that when a complaint states facts sufficient to entitle a party to any relief it is good against a demurrer.' So that, if the complaint is good either for specific performance or to recover the balance of the purchase money, the demurrer was properly overruled. Coleman v. Floyd, 131 Ind. 330. Is it sufficient for specific performance ? An executory contract will not be enforced unless it is perfectly fair, equal, and just in its terms and in the circumstances. Pomeroy, Eq. Jurisp. (2d ed.), §1405; Louisville, etc., R. Co. v. Bodenschatz, 141 Ind. 251, 263, and cases cited. By the’ terms
Is the complaint good for the unpaid purchase money? There are two remedies for the failure to perform an executory contract in writing for the sale of real estate: (1) An action for damages for the breach of the contract; (2) for specific performance. 20 Ency. Pl. & Pr., 398; Beach, Contracts, 1092. An action at law will not lie on an executory contract in writing for the sale of real estate to recover the purchase price. Porter v. Travis, 40 Ind. 556. If we should concede that the action is not upon the executory contract, hut is an action at law for breach of contract, a reversal is required because the court instructed the jury that the measure of damages, if they
Judgment reversed, with instructions to sustain the demurrer to the second paragraph of the complaint.
Concurrence Opinion
Concurring Opinion.
The contract between the parties stipulated that appellees should furnish an abstract of title as soon as could be reasonably done, it to be compiled by an abstracter to be approved by appellant, the same to show a title to said real estate in the “party of the first part which the party of the second part shall deem to be a sufficient and satisfactory title.” I think the action is one to compel the specific performance of this contract, and I do not think the complaint sufficient as against a demurrer for want of facts for the reason, in addition to those stated in the opinion, that it does not contain averments showing that the abstracter who made the abstract was approved by appellant, nor that the title shown thereby was deemed to be sufficient by her. New Telephone Co. v. Foley, 28 Ind. App. 418; Allen v. Pockwitz, 103 Cal. 85, 36 Pac. 1039, 42 Am. St. 99.
