63 Ind. App. 674 | Ind. Ct. App. | 1917
This is a suit to recover money alleged to be due on a parol contract entered into by appellant and appellee. The ease was tried on the amended second paragraph of complaint and an answer of general denial. The jury
Appellant has assigned as error: (1) That the court erred in overruling his demurrer to the second paragraph of amended complaint; (2) the overruling of his motion for judgment on the answers of the jury to the interrogatories; and (3) the motion for a new trial.
The amended second paragraph of complaint, in substance, charges that in November, 1907, appellee entered into a written contract with appellant and his wife whereby they became partners in the cultivation and management of a farm of 735'acres in LaPorte county, Indiana, owned by appellant and his wife; that by the terms of the contract appellee was to move upon and cultivate the farm and the owners were to furnish certain live stock and other things necessary to the operation of the farm, and appellee and said owners were each to receive one-half of the proceeds therefrom ; that by the terms of said contract it was to run until March 1, 1913; that in compliance therewith appellee moved upon and operated said farm for the period of two years and thereby discovered that the soil was cold, sour and deficient in certain elements requisite to the production of crops; that the land was nonproductive and would not grow grains or other crops of any kind or description; that he was a farmer of experience and tilled and managed the farm in a husbandmanlike manner but the crops were entire failures; that on account of the nonproductiveness of the land he lost time and money in trying to raise crops thereon and at the expiration of the second year of his lease he informed appellant that it was impossible to raise crops on the farm because of the nonproductiveness of the soil and that it was impossible for him to continue longer under
The answers to the interrogatories show that in the winter of 1908 and 1909 appellant began to ship manure and lime to the farm and continued until he.had shipped about fifty-two carloads of manure and twenty or more carloads of lime; that appellee hauled and spread upon the land of appellant all of the material so furnished; that after the same was applied to the land it became more productive; that said fertilizers were furnished and applied as aforesaid under an agreement between appellant and appellee that the same should be so furnished and applied; that in September, 1913, the said farm of 735 acres belonged to appellant and his wife and was of the market value of $73,500, and had not been sold.
Appellant contends that the averments of the complaint which show that appellee had performed all the conditions of the contract by him to be performed required of him
Complaint is also made of the refusal of the court to give certain instructions tendered by appellant and of certain instructions given by the court. The principal objections are based upon appellant’s contention that the actual sale of the farm for more than $70,000 was a condition precedent to appellee’s recovery. ¥e have decided the proposition adversely to such contention and need not specifically consider the- several instructions upon which that question arises.
Some other questions are suggested, which are purely technical and do not bear upon the merits of the controversy. The ease seems to have been fairly tried and a correct result reached. No intervening errors are pointed out which deprived appellant of any substantial right. No reversible error is shown. §700 Burns 1914, §658 R. S. 1881; Inland Steel Co. v. Ilko (1913), 181 Ind. 72, 80, 103 N. E. 7; Hall v. Grand Lodge, etc. (1913), 55 Ind. App. 324, 331, 103 N. E. 854. Judgment affirmed.
Note.—Reported in 115 N. E. 257. See under (1) 31 Cyc 49; (3) 9 Cyc 577; (8) 9 Cyc 757; (10) 13 Cyc 125. Sale of real estate, commission, when earned, 139 Am. St. 225.