45 Ind. App. 436 | Ind. Ct. App. | 1909
This was an action by appellant against appellee, based upon a certain written contract entered into September 29, 1897, between appellee and appellant’s decedent, whereby it is alleged that appellee agreed, in consideration of said decedent’s conveying to him certain land, that he would satisfy certain debts of decedent, pay her $500 in cash, and furnish her “with the necessary vegetables, apples, and one barrel of cider each year, and also furnish her with the necessary firewood during her life,” but that appellee, upon demand by decedent, failed to furnish the articles therein stiuplated to be furnished; that decedent died in 1907, and that said contract had been lost or destroyed; that the articles to be furnished by appellee to decedent and not furnished were of the value of $1,000, for which judgment is demanded.
The complaint, the answer in four paragraphs and a reply in general denial formed the issues submitted to a jury for trial. At the conclusion of plaintiff’s,evidence the court instructed the jury to return a verdict for the defendant. Plaintiff’s motion for a new trial, for the reasons therein
The evidence, about which there is little or no conflict, shows that on September 29, 1897, Mary Kurtz, appellant’s decedent, was the owner of certain lands in Dekalb county, which she conveyed to her son, appellee herein; that the consideration recited in the deed was $3,100; that, concurrently with the execution of the deed, the grantor and grantee therein entered into a written contract, which thereafter and prior to the commencement of this action had been lost or destroyed. Only one witness, the scrivener, undertook to detail the contents of that instrument. This witness testified that the true consideration for the deed, as stated in the contract, was that the grantee should pay the then existing debts of the grantor, and furnish her, during her life, with necessary firewood and vegetables, and, in the fall of each year, apples and one barrel of cider, when there was an apple crop. The evidence also shows that appellee furnished the timber from which eight cords of wood was cut; that the decedent lived with her daughter, the wife of appellant, who resided, for five or six years after the execution of the deed, on a ten-acre tract, the property of a third person, ad
Judgment affirmed.