19 Ind. App. 105 | Ind. Ct. App. | 1898
— The only question presented by this appeal is the sufficiency of the complaint. On August 1, 1892, the Cicero Improvement Company entered, into a contract with the appellee and divers other persons, whereby appellee and such other persons agreed to purchase a certain number of lots, at a fixed price, that were thereafter to be laid out and platted in the northeast quarter of section one, township nineteen north, of range four east, in Hamilton county, Indiana. The consideration for this contract on the part of the
These two contracts are made exhibits to the complaint, and form the foundation of the action. The complaint is very lengthy, but the question that is presented for our consideration may be briefly stated as follows: The complaint avers that the appellant has performed all the conditions on its part, as af
The complaint further avers that there was a mortgage upon the real estate which appellant platted into lots, and which were disposed of as aforesaid; that said mortgage was to secure the payment of two notes of $900.00, due in one and two years; that it was stipulated in said mortgage that when any of the said lots were sold the mortgage should be released as to the lots so sold, on payment to the mortgagees an amount equal to the proportion borne by one-fifth of an acre to the amount of said mortgage remaining unpaid; that before the commencement of this suit, appellant tendered to appellee a deed, with covenants of warranty, and demanded of him payment and settlement by notes according to said contract, which he refused. It further appears from the complaint that at the time of the making of the said two contracts the Washington Glass Company was a copartnership, and that before the- commencement of this action it was duly incorporated under the laws of this State; that all the rights, assets and franchises of said firm were, upon the creation of said corporation, transferred to
Appellant and appellee both treat the contract between the Cicero Improvement Company and the appellee as being within the statute of frauds, but appellant contends that it is taken out of the statute by part performance, in that appellee took possession of the lot. It is upon this theory that both appellant and appellee discuss the question. With all due deference to counsel and the learned judge who tried the case below, we are unable to see, under the facts pleaded, how the statute of frauds is applicable. It is not an action to enforce a parol contract for the sale of real estate, nor for specific performance, but to enforce the collection of the purchase price of real estate. So far as applicable here, the statute of frauds is as follows: “When contracts must be in writing. 1. No action shall be brought in any of the following cases: Fourth. Upon any contract for the sale of lands.” Section 6629, Burns’ R. S. 1894, (4904, Horner’s R. S. 1897).
It was contended that the transaction amounted merely to a parol contract for the sale of land, and that neither party to the contract being bound thereby there could be no recovery upon the note. Black, C., in speaking for the court said: “It has sometimes been said that if an executory contract for the conveyance of land do not bind the vendor, he cannot recover upon a note given by. the vendee for purchase money; that if the vendor is not bound by his promise there is no consideration for the promise of the vendee.”.
We should remark in this connection, that in the case from which we have just quoted, there was an a.nswer averring that the note sued on was given without any consideration. Continuing, Black, C., said: “On the other hand, it has been held that the vendor of land by parol contract, if he show his own ability and willingness to perform, can enforce the vendee’s note for purchase money. And this doctrine is placed upon the same principle that prevents the vendee from recovering back the purchase money while the vendor is able and willing to convey according to his verbal agreement. It is said that the defense to the note in such case must be, not upon the statute of frauds, but want, or failure of consideration; which cannot be made out if the vendor show his ability and willingness to perform.”
Mr. Browne in his work on the Statute of Frauds says: “The right in the vendee of land by verbal contract, to recover what money or other consideration he has paid, is -clearly confined to those cases where the vendor has refused or become unable to carry out the contract, the plaintiff himself having faithfully performed or offered to perform on his part. * * *
In the case at bar, the appellant, by his complaint, showed a tender of a deed before the action was brought, conveying to appellee the lot described, and also shows appellee’s refusal to accept it. Appellee, under his contract with the Cicero Improvement Com: pany, subscribed for and agreed to take one lot in the addition platted by appellant, and agreed to pay therefor $200.00. His refusal to accept the deed tendered him and to pay the purchase price, as provided by the contract, was a repudiation of the contract on his part, and it appearing that appellant was willing, able and ready to perform the conditions of the contract on its part, the complaint, in that regard, stated a good cause of action.
Appellee contends, in the next place, that appellant cannot recover because the scheme devised by the purchasers of, or subscribers for the distribution of the lots was tainted by the vice of a lottery, and rely
The court further said: “The important question here is as to the character of the present - contract. Does it infringe this principle of public policy? After a learned and exhaustive discussion of the subject, the learned judge concludes with the following lan
In the case before us there are two contracts accompanying the complaint as exhibits.
(1) A contract between the Cicero Improvement Company and appellee, and others;
(2) A contract between appellant and the Cicero Improvement Company.
These two contracts should be considered and construed together, for, in substance, they relate to the same subject-matter. In the contract first mentioned, it is recited that the Improvement Company is trying to locate at Cicero one or more factories, and as an inducement to such location, said company, or their assigns, propose to lay out and to plat into town lots certain real estate, and to encourage such location; the signers to said agreement, bound themselves to subscribe for and take the number of lots designated opposite their respective names, at a price not to exceed $200.00 per lot; said subscribers were to pay one-third the purchase price in cash, one-third in one and two years, with six per cent, interest. The contract contains the following provisions: “This agreement is made on the express conditions and understanding that one or more factories * * * shall be located in said town. (Cicero.) The lot hereby
“James Leach......1 Lot......$200.00, etc.”
The second contract provided that appellant was to build on certain lands, one 16 pot glass bottle factory; thatitwas to'employ not less than 150 hands; that the weekly pay-roll should not be less than $1,500.00;. that it was to lay out and plat certain lands into town lots, and that the Improvement' Company was to procure the sale of 150 of said lots, such lots to be platted at not more than five to the acre including streets and alleys. The contract further provided that the purchasers were to make selection of the lots in pursuance to the contract which the subscription of such lots had been taken; that said lots were to be sold at an average price of f200.00 per lot, to be paid for, one-third cash, one-third in one and two years, secured by mortgage, the deferred payments to bear six per cent, interest.
The complaint avers full performance of all the conditions of the contract on appellant’s part, and shows a tender of a deed to appellee for the lot apportioned to and selected by him.
The complaint further alleges the manner or scheme agreed upon between appellee and his co-subscribers for the apportionment, location, and selection of such lots, but charges, “That in making said selection of lots by said drawing, plaintiff neither participated therein nor counseled nor advised the same.”
It is clear that neither of these- contracts is tainted by the vice of a lottery scheme, and the complaint as clearly shows that appellant had no connection with the scheme devised by appellee and his co-subscribers
Appellant, relying in good -faith, upon the terms and conditions of these contracts, proceeded to carry out their provisions on its part, by erecting its factory, investing its money on the faith of the contracts, employing men, showing that it employed over 150 men, or hands, and paid out over $1,500.00 on its weekly pay-rolls. It had no right to assume that appellee and the other subscribers would enter into an unlawful scheme for the selection of the lots, but had a right to assume that some legitimate and lawful means would be resorted to by them for that purpose. ' In any event appellant was in no way connected with such a scheme; it was not a party to it; did not counsel or advise it, and we are unable to see upon what principle of law, equity, or reason, it can be deprived from asserting its rights, on account of such unlawful acts of appellee and others. It seems to us that if the rule should prevail for which appellee contends, that it would work great hardship and rank injustice in many instances. Thus if A should enter into a contract with B and others, legitimate and lawful in all of its provisions, and not in any sense against public policy or good morals, and then B and others should enter into some unlawful scheme relating to such contract, with which scheme A had no connection, then, in that event, if appellee’s contention should prevail, A could not enforce his rights under the contract. Such a doctrine would be monstrous and certainly cannot prevail in the administration of justice. It is the duty of courts to administer and declare the law so as to protect the rights of all parties who apply to the courts for redress. Here appellant has done all that it agreed to do, as appears from the complaint;
We have examined the case of Lynch v. Rosenthal, supra, with very great care, and are satisfied that what we have said here does not in any sense conflict with the doctrine therein announced.
We do not think it necessary to extend this opinion by a discussion of the only remaining question which is presented, as for the reasons given the judgment must be reversed. The judgment is therefore reversed, with instructions to the court below to overrule appellee’s demurrer to the complaint.