24 Ind. App. 422 | Ind. Ct. App. | 1900
The complaint of the appellee against the appellant was held sufficient upon demurrer. It was filed on the 1st day of February, 1898, and it was alleged therein that the appellant was indebted to the appellee in the sum of $120 as purchase money due on lot nine in the Rochester Improvement Company’s addition to the town of Rochester, Pulton county, Indiana, purchased by the appellant of the appellee at and for the sum of $200; that on September 12, 1895, the appellee and the appellant executed a written agreement respecting such purchase, a copy of which was made an exhibit. It was further alleged that under the terms of said agreement the appellant was to pay in weekly instalments of $1 per week the sum of $190, he having paid $10 on the purchase when made; that on December 9, 1895, he paid $20 thereon; that, under the terms of said contract,
The agreement filed as an exhibit, dated September 12, 1895, and signed by both parties in duplicate, purported to witness that the appellee on that date sold to the appellant lot number nine in said addition, “the number of the lot to be hereafter determined by a distribution of the lots in said addition among. the lot purchasers, in the same manner that the lots in the University addition to Rochester were distributed, and the number of the lot so determined' to be hereafter inserted herein”. The terms and conditions of the sale were set forth as follows: “The purchase price thereof being $200, $10 of which has been paid to said company, the receipt whereof is hereby acknowledged, and the further payment of $190 to be paid to said company in weekly payments of $1 per week each week until the full amount of the purchase price of said lot is fully paid. Now, if the said M. Wile shall well and truly pay the said $190 in weekly payments of $1 per week each week, commencing with September 12, 1895, upon full payment of such purchase price it is hereby agreed that the
The appellant, in argument, assuming the action to be one for specific performance, objects to the complaint upon the grounds that appellee’s ownership in fee of the land
The appellant’s characterization of the action is not correct. It is an action to recover instalments of purchase money due; the time for payment of the last instalment and for the execution of the conveyance by the plaintiff not having arrived at the commencement of the action. The promise to pay the instalments, to recover the amount of which the action is brought, was not to be performed concurrently with the execution of a conveyance, but was an independent promise. Therefore, it was not needed in the complaint to show performance, or tender of performance, or readiness and ability to perform on the part of the plaintiff.
In Leonard v. Bates, 1 Blackf. 172, it was held, that, if the purchase money for real estate be payable by instalments, the first before the deed is to be made, the second on the day on which the deed is to be made, and the last on a subsequent day, the promise to pay the first instalment is independent, and the promise to pay each of the other instalments is dependent; that an action will lie on the promise to pay the first instalment without showing a previous execution of the title or offer to execute it, but not so upon the promise to pay the second or third instalments.
In Cunningham v. Gwinn, 4 Blackf. 341, it was held that, although a note given in part payment of certain real estate be due before the time appointed for the execution of the deed, yet, if suit on the note be not commenced until after the time when the deed was to be executed, the defendant may plead in bar that the plaintiff did not on the day fixed by the contract execute, or offer to execute, the deed. See, also, Irwin v. Lee, 34 Ind. 319; Summers v. Sleeth, 45 Ind. 598. The objections of the appellant to the complaint do not seem to be well taken.
The appellant answered in two paragraphs, the second
There was a reply in two paragraphs to the first paragraph of answer, the first paragraph of reply being a general denial. In the second paragraph, a demurrer to which was overruled, it was shown that the appellee was organized as a corporation in May, 1892, for the purpose of promoting the interests of Rochester and vicinity by establishing factories;- that a tract of land within said town was purchased August 26, 1892, by the appellee, and replatted; streets and alleys being established, and the plat was duly recorded; that in July, 1895, one "William H. Ogan entered into a written contract with appellee for the sale of 150 of the lots, to be sold for $200 each, and the same day, as a part of the same transaction, a written contract was entered into by and between the appellee and one W. II. Stoddard, in which it was provided that, if said Ogan should succeed in selling said 150 lots, Stoddard should erect, on certain of the lots specified in said addition, a good, substantial two-story brick building, of dimensions stated, and properly equip it as a shoe factory, and should run said factory for at least five years from October 1, 1895, and employ therein at least 100 persons on an average, and should organize and
The appellant in argument claims the theory of the first paragraph of answer to be that the manner of distribution provided for in the subscription paper and in the bond sued on, and disclosed by the answer, was void, as against public policy; and further claims that the reply does not show that the mode of distribution set forth in the answer was not in fact pursued, but that the reply only shows, concerning this matter, that the appellee did not participate in this distribution.
¿The appellee contracted with Stoddard in relation to the shoe factory, and at the same time contracted with Ogan to sell 150 lots. Ogan provided himself with the subscription
The distribution of the college lots, as appears from the reply, had been made by the subscribers thereto before the date of the subscription to the appellee’s lots. The manner which the subscribers to the college lots actually adopted or pursued is not stated either in the answer or reply, but the manner of distributing the lots of the appellee is set forth in the answer, wherein it is alleged that the appellee participated. The paper subscribed by purchasers of the “college lots” did not provide for a scheme of chance, or a lottery, but provided that the method of distribution should be agreed upon by the subscribers. It does not appear in any of the pleadings that the appellee knew what method they pursued, nor is the method actually pursued by them shown. The method pursued by the subscribers for the appellee’s lots, as stated in the answer, was a scheme of chance, and contrary to public policy; but, upon the facts stated in the reply, it does not appear that such a method was intended or expected by the appellee, and it does affirmatively appear that the appellee did not fake part in it.
The right of the appellee to recover the purchase money was not affected by the scheme of distribution by lot,
The appellant’s motion for a new trial was overruled, and under the assignment of error relating to this ruling counsel have questioned an instruction given to the jury. The instruction was not saved by bill of exceptions, and the record does not show that it was filed. Therefore, it can not be treated as a part of the record. Other causes in the motion for a new trial can not be considered without the evidence, and, though there is in the transcript a bill of exceptions purporting to contain the evidence, it is not properly in the record. The motion for a new trial was overruled at the term of the trial, and the appellant then excepted to this ruling, but no time for the presentation of a bill of exceptions was given them. At a subsequent term a motion in arrest of judgment was overuled, and thereupon judgment was rendered, and time was then given extending beyond that term to prepare and file the appellant’s bill of exceptions..
In the provision of the statute for giving time for a bill of exceptions beyond the term, the word “term” means that term at which the decision was made and the exception thereto was taken. §638 Burns 1894, §626 Horner 1897; Sohn v. Marion, etc., Co., 73 Ind. 77, 79.
Judgment afiirmed.