West v. Chase

3 Ind. 301 | Ind. | 1852

Blackford, J.

This was a bill in chancery, filed in the Elkhart Circuit Court in August, 1844, by Chase against West.

The bill states that West, on the 7th of December, 1842, contracted to sell to Chase lot No. 66, in Elkhart, for 250 dollars in potter’s ware, for the payment of which sum five notes of 50 dollars each were given; that the note first due was payable on the 1st of March, 1843, and the one last due was payable on the 1st of March, 1844; that West was to make the deed by the 1st of March, 1843, by Chase’s making him a mortgage to secure the notes.

The bill further states that the three notes first due were paid; that when the other two fell due, the complainant had the ware ready to deliver in payment of them; that he has always been, and still is, ready to deliver the ware; that said ware, sufficient to discharge said two notes, was set apart and designated for the payment thereof, by the complainant, who was ready and ’ willing to deliver the same to West, but no person came to receive it; and that he has said ware still ready to discharge said two notes whenever the same shall be called for.

The bill further states that the complainant has been always ready to execute the mortgage upon Wests conveying him the lot, but that West has refused to make the conveyance, notwithstanding the complainant has required him to do so, and has offered to pay him the residue of the purchase-money upon his making the conveyance.

Prayer that West may be required to convey said lot to the complainant, and for general relief.

The answer admits the execution of the contract and of the notes as stated in the bill. It also admits the payment of three of the notes as alleged in the bill. It denies that the complainant was always ready and willing to pay the two unpaid notes, or that he had the potter’s ware ready. It alleges that when said two notes respectively became due, the defendant demanded payment of the same, but the payment either in potter’s ware or otherwise was refused. It denies that the complainant offered to execute the mortgage in case of the defendant’s executing the conveyance for the lot. It denies that the complainant ever demanded a deed for the lot, and offered to pay the residue on the deed’s being made.

The cause was submitted to the Court on the bill, answer, exhibits, and depositions; and a decree was rendered for the complainant.

This bill, not having been filed until all the notes fell due, the complainant could not have a decree for the lot without showing a payment of all the notes, or a proper offer to pay them, or something equivalent.

It was proved that the contract in question was made in said Elkhart county, where the lot is situate, and where the complainant resided; that the defendant resided, when the contract was made, and up to 1846, in the state of Elinois; and that during the year 1844, the complainant carried on, in said Elkhart county, the business of making potter’s ware. It was also proved that when the two notes in question respectively became due, the complainant set apart for the defendant, at a certain potter’s ware shop in said county, potter’s ware sufficient to discharge those notes. The only difficulty in the case is to determine, from the depositions, whether said shop was the place where the complainant carried on his said business. If it was, the ware set apart as aforesaid became the property of West, and the notes were paid. We have come to the conclusion, not however without some hesitation, that the complainant did carry on his said business at said shop. The consequence is, the complainant must be considered as having done all the law required, in order to perform his part of the contract.

L. Barbour, for the plaintiff. J. Morrison and A. Major, for the defendant.

The defendant’s absence from the state was a sufficient excuse for the complainant’s not demanding a deed, had such demand been otherwise necessary.

Per Curiam.

The decree is affirmed, with costs.