43 Ind. App. 578 | Ind. Ct. App. | 1909
Appellant sued appellees to recover the purchase money on account of an alleged shortage in the number of acres conveyed by defendants to-the plaintiff on a contract of sale of real estate. The complaint is in two paragraphs. The first was filed September 22, 1905, in tbe
The only error assigned is the overruling of appellant’s motion for a new trial.
The following facts are shown by the evidence: On October 31,1901, appellee John B. Hayes, Sr., and his children, owned a large tract of land situated in Knox county, Indiana, and estimated to contain 850 acres. About twenty days prior to that time appellee ITayes, Sr., acting for himself and his children, sold to George A. Bright, a real estate
It thus appears from the evidence that Ilayes had sold to Bright an option to purchase the land in question, and had bound himself to make a conveyance to Bright or any other person named by him. Hayes had no direct dealing with Wolcott. Wolcott went into the deal with Bright and Gipson for the purpose of taking the land on Bright’s option and sharing in the profits. Wolcott and Gipson were partners in the real estate brokerage business. They worked together in getting the other purchasers to take an interest in the land at an advanced price of $40 an acre, or $4 an acre over the option price. This was for the benefit of Wolcott, Gipson and Bright. Wolcott contracted to pay $40 per acre for the farm, the same as Smith and Gilbert, but he only paid $36 an acre.
Appellant does not deny that Gipson was his agent and acted for him in negotiating for the purchase of this land. He now claims that his agent had no authority to bind him in regard to any agreement as to the number of acres. His position is that his agent could contract for his benefit by modifying the contract from $40 to $36 an acre, but could not bind him by waiving any other advantage he might have. He asks the benefit of the modification of the contract from $40 to $36, but he never saw Hayes, and did not, in person, make any such modification. ‘If any such modification was made, it was made by his agent Gipson. There is no proof that the contract was modified. At $40 an acre, Wolcott should have paid $18,000 for the 450 acres, while he only paid $16,200, or $1,800 less than the amount called for in the contract, which, under the contract, he would owe appellees.
If we concede that the lands fall short 81.10 acres, Wolcott would be entitled to a rebate for forty-five eighty-fifths of 81.10 acres, or 42.94 acres at $36 which would
450 acres at $40 an acre.................. $18,000.00
Paid by Wolcott at $36 an acre............ 16,200.00
Balance due on contract price.............$ 1,800.00
Wolcott entitled to rebate on 42.94 acres at
$36 per acre.......................... 1,545.84
Balance due appellees....................$ 254.16
Judgment affirmed.