61 Ind. App. 42 | Ind. Ct. App. | 1916
Appellant brought this action to compel the specific performance of the following contract:
“I, John Toth and Susanna Y. Toth, of East Chicago, Indiana, for and in consideration of the sum of One Dollar to me in hand paid by Clarence C. Smith, of East Chicago, Indiana, do hereby give to said ^Clarence C. Smith, his heirs and assigns, the privilege of purchasing on or before the 10th day of February, 1912, the following described real estate, situated in the county of Lake and the State of Indiana, to wit: Lots thirty-one (31) and thirty-two (32) * * * at and for the price of Three Thousand (3,000.00) cash net to said Toth. Said money to be paid on or before the 15th day of February, 1912, to John Y. Toth and Susanna V. Toth. I also agree to furnish an abstract of title showing good title to said real estate, except special assessments payable after Nov. 1, 1911. In case the privilege of purchase hereby given is exercised, I agree to convey and assure the said real estate to said Clarence C. Smith, his heirs or assigns by a good and sufficient warranty deed, reciting a consideration of $1.00 free and clear of all hens whatever.' John Y. Toth, Mrs. Susanna Y. Toth. Accepted by me this 10th day of January, 1912. Clarence C. Smith. Witness: G. H. Jacobson.”
It is alleged in the complaint that appellant on January 29, 1912, exercised his option to purchase by notifying appellees (by which term, as used in this opinion, is meant Toth and Toth, unless other
The questions presented arise under the motion for a new trial, and are the insufficiency of the evidence, that the decision is contrary to law, and alleged error in the exclusion of certain offered testimony. The principal matter in controversy grows out of conflict in the constructions placed on the contract. Appellant contends that by the terms of the contract he bound himself on his election to avail himself of the option thereby extended to him to pay $3,000 for the property free of all liens thereon, except special assessments, payable after November 1, 1911. Appellees, Toth and Toth, however, contend that by the terms of the contract, appellant, in case he elected to purchase the property, agreed to pay them $3,000 for the property subject to all liens thereon, the existence of which they claim were well known to the parties.
Note. — Reported in 111 N. E. 442. As to the basis of the doctrine of specific performance, see 128 Am. St. 383. For a discussion of the right to specific performance of optional contracts, see 1 Ann. Cas. 990; 12 Ann. Cas. 90; Ann. Cas. 1913 A 362. See, also, under (1) 20 Cye 1367; (2) 9 Cyc 577, 587, 588; (3) 9 Cye 587; 17 Cye 662; (5) 36 Cye 595; (6) 3 C. J. 1415, 1430; 2 Cyc 1015, 1017.