39 Ind. App. 626 | Ind. Ct. App. | 1907
The trial court sustained a demurrer for want of facts to the single paragraph of the appellants’ complaint, and, upon their refusal to plead further, rendered judgment against them, from which the appeal is taken. The assignment of error is that the court erred in sustaining said demurrer.
It was averred in the complaint that the appellants were partners; that appellees Jones and Jones were husband and wife, and on October 21, 1904, were the owners in fee simple as tenants by the entirety of certain described real estate in the city of Brazil; that on said date appellees Jones and Jones, being desirous of selling said property, gave an option in writing to appellants to sell the same for them at the price of $950 to any person willing to buy, and agreed to make a deed to any purchaser that appellants might procure within thirty days from said date; that within such time appellants found a buyer for said property at the price of $1,150, and thereupon offered to pay to
“Sale Contract.
Phillips & Weaver, agents.
Gentlemen: I have for sale the following described property, to wit: Part of Lot No. 2 in Hendrix’s Eighth Addition to the city of Brazil, located at Nos. 402, 406, 408 and 414 North Hoosier street in the city of Brazil.
I hereby place the above property in the hands of the aforesaid agents, and authorize its sale for the price of $950, and, when said agents find a customer who is ready and willing to purchase said property at the price above named, I agree to convey the same, by good and sufficient warranty deed and to furnish an abstract of title showing the same free of all encumbrances. Giving agents control of the same for a period of thirty days from date. To be a lien during existence. Samuel Jones.
Sarah Jones.”
It is further averred: “That said written instrument, executed by defendants Jones and Jones to the plaintiffs herein, contained the expression To be a lien during existence,’ which was understood, construed and interpreted by said defendants Jones and Jones and the plaintiffs, and was by all said parties agreed to mean, that said plaintiffs were to receive as a commission for procuring a purchaser for said real estate the difference between the price fixed in the option and such price as plaintiffs could obtain therefor, and that such difference, which amounted to $200, should be a lien upon said real estate.”
Judgment affirmed.