24 Ind. 124 | Ind. | 1865
Suit by Wallick against Scott, to recover $100 paid upon the following contract:
“Cambridge City, August 1,1864.
This is to certify that I have this day sold to Benjamin Walliclc a meat shop that I have formerly occupied, situated in Cambridge City, for the sum of two hundred and fifty dollars, and have this day received one hundred dollars, and further agree to give possession of said shop six weeks from date, on receipt of the remaining one hundred and fifty dollars.
In case I fail to comply with the above, I do agree to refund the one hundred dollars paid.
Jambs A. Scott.”
The complaint avers that after the expiration of the time stipulated for giving possession of said shop, the said Scott resold the same, and gave possession thereof to the purchaser.
The appellant answered, denying that he had rescinded the contract, but averring that, at the date fixed by the contract, and for a long time afterward, and until the 15th day of November, he was ready and willing to deliver possession of said shop, but was unable to find the appellee; and by reason of the default of said Wallick, ho sold the said shop for the sum of $75, but denies that the same was in disaffirmance of the agreement. To this answer a demurrer was sustained. The action upon this demurrer was right. The attempt by the appellant, to treat the property as a pledge in his hands to secure the performance of the contract by the appellee, cannot be sustained. If it were possible to regard the contract as of that nature, still a pledge cannot be sold, except after a personal demand upon the party liable for the performance of the contract, and after public notice, for a reasonable time, of the date and place of sale, unless authorized by judicial proceeding. Indi-, ■ ana $ Illinois Central Eaihoay Co. v. McKeman, ante, p. 62. If the appellant suffered any damage by reason of the failure of the appellee to comply with the contract, and pay the remainder of the purchase money when due, he might have set up such damages by answer, as a counter-claim to the
In McCord v. The Ohio Mississippi Railroad Co., 13 Ind. 220, in an action by the company to enforce a subscription of stock, it was held a good defense, that after default in the payment of the subscription, the company had issued stock to other parties to the full amount authorized by her charter, and thus placed it out of her power to comply with her contract. The same principle would prevent the appellant sustaining any defense based upon the enforcement of the contract.
The judgment is affirmed, with five per cent, damages and costs.