49 Ind. 275 | Ind. | 1874
This was an action by appellant against appellee, for services rendered under a special contract between them in reference to the sale of certain real estate.
Issue, trial by a jury, verdict for appellee, and, over motion for a new trial, judgment on the verdict.
The appellant has assigned for error the overruling of the motion for a new trial.
The material facts are these: The appellee owned one hunched and sixty acres of land near .the city of Kokomo, Indiana, which he had been offering for sale for several years.
“ Since here I refused fifty dollars per acre for my land. X hold it at fifty-five dollars per acre. If you can find a man who will pay fifty-five dollars per acre, one-half down, I will pay you two hundred dollars, if you let me know soon. I hope to be in Del. next week.
“ Yours truly, J. S. Albright."
Upon the receipt of this letter, appellant advertised the land for sale in the city papers, and conversed with various persons in referencé to the land, and tried to procure a purchaser. On the 20th, of March, 1873, appellee went to Kokomo and went home with appellant and took dinner with him. They had a conversation about the sale of the land, in which appellant informed appellee what he had done, and that he had a prospect of finding a purchaser. Appellee did not inform appellant that he had sold the land, or had any immediate prospect of selling the same. About four o’clock p. M. of said day, Marts and Hocker made to appellant a written proposition to purchase said land at fifty-five dollars per acre, one-half cash and the balance in one and two years, with six per cent, interest.
The case made by appellee, was this: On the 17th day of February, 1873, L. A. Leach, of the city of Kokomo, wrote to appellee proposing to purchase the land in question, .and asking the price and terms. This letter was received by appellee at Madison, New Jersey, and on the same day he wrote to appellant he wrote to Leach to the effect that he had refused fifty dollars per acre for his land since he had been.
Upon this evidence, the court instructed the jury as follows:
, “1. By the second paragraph of the complaint, the plaintiff seeks to recover upon a contract which he alleges was made by him with the defendant, by which he avers it was agreed that the defendant was to pay him the sum of two hundred -dollars if the plaintiff would furnish a purchaser for his, •defendant’s, real estate in Howard county, Indiana, at the
“ 2. If the material averments in the second paragraph of the complaint are not established by a preponderance of the-evidence, you should find for the defendant. The burden of the proof is upon the defendant to show that he made a sale of the land before the plaintiff did. If that is established,,, the burden of the proof is upon the plaintiff to show that he was to have compensation if the defendant made the sale, or that by contract the defendant had no right to make a sale.”
In both of the instructions, the jury were directed that, the plaintiff could not recover, unless they were satisfied from, the evidence that he had made a sale of the land before the defendant had sold it. This was making a new contract for-the parties. The appellee had obligated himself to pay appellant two hundred dollars, if he could, within a reasonable time, find a man who would purchase the land at fifty-five dollars per acre. The appellant accepted the proposition, and advertised the land for sale. He conversed with various-persons in reference to the land. He induced two persons to purchase the land at the price and upon the terms named. The proposition was made on the 27th day of February, 1873, and
In Hawley v. Smith, 45 Ind. 183, it was held, upon full consideration, that the rule is, that when the performance by one party is prevented by the act of the other, the party not in fault should recover in damages such sum as will fully compensate him for the injury which he has sustained by reason of the non-performance of the contract. This principle is directly in point here. The two cases are, in many respects, alike. The appellant seems to have acted in perfect good faith, while it seems that the appellee sold his land at a reduced price, to avoid the payment to the appellant of the sum agreed upon. The appellee cannot thus avoid the obligation of his contract. He made his proposition broad and comprehensive, and imposed no conditions. He might have provided that if he effected a sale of the land before the appellant found a purchaser, he was not to pay him the sum agreed upon. Having failed to do so or impose any other conditions, the courts cannot make a new contract for him or impose conditions not imposed by himself, but must determine the rights of the parties under the contract as made by them.
The judgment is reversed, with costs; and the cause is remanded, with directions for a new trial in accordance with this opinion.