33 Ind. App. 202 | Ind. Ct. App. | 1904
Lead Opinion
Appellants, who were plaintiffs below, sued appellee upon a written contract, casting their complaint in one paragraph. The appellee answered in four paragraphs, to the second, third, and fourth of which a demurrer was overruled. Appellants replied in one paragraph. Trial by jury, and upon the completion of the evidence the appellee interposed a motion that the court instruct the jury to return a verdict in his favor. This motion was sustained. Appellants thereupon moved for a new trial, which motion was overruled. The errors assigned bring in review the overruling of the demurrer to the second, third, and fourth paragraphs of answer, to the action of the court in directing a verdict for the defendant, and overruling appellants’ motion for a new trial.
Appellants’ action was based upon a. written contract by which the appellee bound himself to convey by deed to appellants a certain interest which he held or owned in designated property in Martinsville, Indiana. By that contract the appellee sold to appellants his undivided one-third interest in the Mutter-Major Sanitarium, situated on the north half of out block Mo. 31 in the original plat of the city of Martinsville, for and in consideration of the sum of $8,000. The contract shows that, on the day of its execution, appellants paid appellee $3,000 in cash, and executed their promissory notes for the sums of $1,200 and $1,164, due, respectively, in one and two years from date, bearing eight per cent, interest. Contract also shows that the appellants assumed, as balance of said purchase price, the payment of one-third of a mortgage on the said property executed-by said appellee and Isaac W. and Emily J. Mutter and Albert H. Mutter to the Home Building Association of Martinsville; said one-third being the amount of $2,636.
Under a strict construction of rule twenty-two, appellants are not entitled to have considered the action of the
A proper determination of the question requires a statement of the facts disclosed by the evidence. The evidence is without conflict, and discloses the following material facts: That, prior to the contract sued on, Albert H. Nutter and Isaac W. and Emily J. Nutter (the latter two being husband and wife) and appellee formed a partnership for the purpose of erecting and operating a sanitarium at Martinsville, Indiana. The firm was known as the Nutter-Major Sanitarium Company, and owned in fee simple the northwest quarter of out-lot No. 37 in Martins-
In the receivership proceedings both the creditors of the old firm, the Nutter-Major Sanitarium Company, and the new firm, the Nutter-Webster Company, filed their respective claims, which were allowed and paid out of the assets.
At the time of the execution of the contract sued on, appellee, the heirs of Albert H. Nutter, and Isaac W. and Emily J. Nutter, as husband and wife, each owned an undivided one-third interest in the real estate upon which
In view of the fact that counsel do not fully agree as to the construction that should be given the contract sued on, it is of primary importance first to determine, from the instrument itself, if that can be done, just w'hat appellee sold to appellants, and what the latter agreed to purchase. From the view we have taken of it,, the contract is easily construed, as there is nothing ambiguous or uncertain about it. The contract should be construed in view of the law that governs it. Before the death of Albert H. Nutter the real estate which appellee sold and agreed to convey to appellants was owned by Albert H. Nutter, Isaac W. and Emily J. Nutter (the latter two as husband and wife), and appellee, as tenants in common. Albert II. Nutter, Isaac W. and Emily J. Nutter, and appellee, each owned an undivided one-third interest. They also had leased from one Sarah O. Nutter a part of the lot upon which the sanitarium was being erected, and held an option thereon for its purchase at a fixed price. Prior to the death of Albert II. Nutter the parties just designated were partners in conducting a sanitarium situate on the real estate in controversy. By- his death that partnership was at once dissolved, and the partnership business immediately became subject to settlement under the provisions of the statute.
So at the time of the execution of the contract between appellants and appellee there was not, in law, any partnership between the original partners, and the surviving partners and the heirs of the deceased partner held their respective interests in the partnership assets subject to the rights of creditors. Appellants were chargeable with,notice of these facts, and were bound to know that the partnership business of the old‘firm had not been settled, and that, as the surviving partners had not moved in the matter, a receiver could at any time be appointed to wind up the business. By the terms of the contract, appellee sold to appellants his undivided one-third interest which he held in the original partnership, and this included both his interest in the real estate, the business, and the personal assets of the firm. It included also his interest in the lease, and the option it contained. The contract does not bind appellee to convey to appellants any fee simple interest in the leased real estate, but simply transfers his interest therein to appellants, and confers upon them the right to purchase at the price designated. From the plain language of the contract, it will admit of no other construction. After appellants purchased appellee’s interest, a new part
Under the undisputed facts, the decision is narrowed to a single question, and that is: Is the appellee relieved from the penalty of his bond, by the divestment of the title to the real estate and the dissipation of the partnership assets of the firm, by the judicial sale under the receivership proceedings ? As to the right of one of the surviving partners to have a receiver appointed to wind up the affairs of the partnership, there can be no doubt. It is also beyond the realm of legitimate debate that the court had the right to order the sale of all the partnership property and assets for the payment of existing liabilities, and distribute the residue between the survivors according to their respective interests. It is further unquestionably true that the sale by the receiver under order of the court w'as a judicial sale. All parties in interest, including appellants and appellee, were made parties in the receivership proceedings. Their rights prevailed when the contract was made, and the law governing them was then fixed, and this law must be read into the contract, as a part of it, and all parties in interest are bound by it.
The case of Milligan v. Poole, 35 Ind. 64, is relied on as affirming the doctrine that appellee is not liable on his contract to convey, because his title was divested by a judicial sale. The facts upon which that case was decided were these: Buchanan and Milligan owned a tract of real estate in equal shares, as tenants in common. Milligan sold his undivided one-half interest to appellees, gave them a bond for a deed on their payment of the purchase money, and they went into possession. They paid the first two payments as they matured. Buchanan then filed a petition for partition, making appellees and appellant parties. Milligan filed an answer, and also a cross-bill, by the latter of which he set up his contract with appellees, showed his in
On appeal the Supreme Court decided the case on the action of the court in' striking out the answer and cross-bill of Milligan. The court said: “In this State, it is provided by statute that all persons holding lands as joint tenants, or tenants in common, or tenants in coparcenary,
Ordinarily, an obligor will be required to perform the conditions of his bond, but there are exceptions to the general rule. Thus performance is excused by the law, and that is whenever, for any reason other than the act of the obligor himself, performance becomes impossible. 4 Am. & Eng. Ency. Law (2d ed.), 686; Hayden v. Phillips, 89 Ky. 1, 11 S. W. 951; Baylies v. Fettyplace, 7 Mass. 325; Ames v. Belden, 17 Barb. 513. Also, if, by the act of the obligee, performance is rendered impossible, the obligor is excused from liability for nonperformance. 4 Am. & Eng. Ency. Law (2d ed.), 687; United States v. Maloney, 22 Wash. L. Rep. 785; Dwelley v. Dwelley, 143 Mass. 509, 10 N. E. 468; Pioneer Sav., etc., Co. v. Freeburg, 59 Minn. 230, 61 N. W. 25; Olive v. Alter, 14 Mo. 185; People v. Cushney, 44 Barb. 118. In Hew' Hampshire it was held that nonperformance is excused in case the obligee neglects or refuses to act, where, by his aid, the condition, otherwise impossible, could have been performed. Pindar v. Upton, 44 N. H. 358.
Without reiterating the obligations imposed upon appellants by the contract, it is sufficient to say that the evidence
Query: Can an obligee in a bond require full performance on the part of the obligor while the former is in default? As above indicated, the appellants were bound to know that when they contracted for the property they took it subject to all the rights of the parties in interest, and with all the legal incidents pertaining to it. They knew that a receiver could be appointed to close up the business of the preexisting partnership, that any interested party could apply for partition, and that, if the property was not kept intact, appellee could not convey under the contract. By a decree of the court, in a proceeding in which appellants and appellee were parties, it was put beyond the power of appellee to convey to appellants. We do not see any difference, in principle, upon the facts here presented, between this case and that of Milligan v. Poole, 35 Ind. 64.
As was said in that case, the appellee here was under no greater obligation to protect his title in the receivership proceedings and sale, so as to enable him to perform the obligations of his bond, than appellants, who were in possession, were to protect the title and make it possible for him to convey. If they had purchased at the sale they would have been in position to assert their rights as vendees.
If in the Milligan-Poole case, supra, the sale of the real estate under the partition proceedings put it out of the power of the vendee to convey, and made it unnecessary for
The judgment is affirmed.
Roby, J. — This action was brought by appellants. They sought thereby to recover money paid by them to appellee under the terms of the contract hereafter set out. Three affirmative paragraphs of answer were filed, and also a general denial. There Was no reversible error in overruling demurrers to the second, third, and fourth paragraphs of answer, for the reason that they amounted to no more than argumentative denials. The cause was submitted to a jury, and at the close of the evidence the court directed a verdict for the defendant. This action presents the question for decision, and requires a consideration of the evidence.
It appears that Isaac W. and Emily J. Mutter, as one party, Albert H. Mutter, and Sylvanus Major, the appellee, were partners under the style of Mutter-Major Sanitarium Company, engaged in the erection and operation of a sanitarium at Martinsville, Morgan county, Indiana. The firm owned in fee the northwest quarter of out-lot thirty-seven in said town, and had a leasehold interest in and option to purchase the northeast quarter of said out-lot. They were making extensive improvements on said property, when, in January, 1896, Albert II. Mutter died, leaving a widow and two children, his heirs. Mo settlement of the partnership business was had. The widow and the surviving partners continued to build and equip the sanitarium, which was finished in May, 1896. On June 17, 1896, appellant Ellery C. Webster, prior to that time employed as a physician in said institution, and Sarah C. Webster, his wife, entered into a contract with appellee by the terms of which appellee sold to “said Webster and Webster his undivided one-third interest in the Mutter-Major Sanitarium, situated on the north half of out-lot or block Mo. 37 in original plat * * * for and in consideration of the sum of $8,000 * * * said Major
In Locke v. White, 89 Ind. 492, cited and relied upon by appellant, it was held that a deed conveying and warranting certain described real, estate estopped the grantor from setting up an after-acquired title thereto, although the deed concluded with a recital to the effect that it was the intention to convey the entire interest of the person named therein. The authority is not applicable to the case at bar. There are here no words of general warranty or conveyance, and no attempt or agreement to fell anything except an interest. “Where a deed with covenant of warranty purports only to convey the interest of the vendor, it amounts to no more than a quitclaim deed.” Shumaker v. Johnson, 35 Ind. 33; Locke v. White, supra. The determining point in the ease is as to what was bought and sold by the respective parties. If appellants got what they bought, that is an end to it. If they did not get what they bought, appellee can not keep the money received by him, and no default upon their part is shown justifying him in attempting to do so.
The question is one of difficulty. It does not appear in the contract, nor from the evidence, what was included in the term “the Mutter-Major Sanitarium.” Whether any part of the consideration was personal property, whether the element of good will entered into the transaction or not, is entirely conjectural. If it were to be held that the contract amounted to an agreement to convey an undivided, unencumbered one-third part of the real estate described, such holding would of necessity be based upon evidence extrinsic to the writing, and descriptive of the thing sold and warranted. The conduct of the parties themselves
There is no answer setting up former adjudication, and that issue is not in the case. Stevens v. Reynolds, 143 Ind. 467, 483, 52 Am. St. 422; Cleveland, etc., R. Co. v. Closser, 126 Ind. 348, 367, 9 L. R. A. 754, 22 Am. St. 593.
Much stress has been laid, in argument, upon Milligan v. Poole, 35 Ind. 64. It was held there that the purchaser of an undivided interest in real estate took it subject to its legal incidents. The controlling question in this case is, what estate was purchased? So that discussion of Milligan v. Poole is merely academic.
The judgment is affirmed.
Concurrence Opinion
I concur in the result reached in the foregoing opinions of my associates.