*1 417 con an erroneous “An abuse of discretion is against clearly judgment, clusion and one logic circum of the facts and and effect reasonable, court, or the before the stances probable be and actual deductions of the lower court’s therefrom. The exercise drawn alleged reviewable; only the it is discretion appeal.” on power which is reviewable of that abuse City Fowler Bank Trust Co. v. arlan McF 10, 14, 12 N. E. 752. (1938), Ind. 2d et al. thoroughly carefully examined the We have produced trial from such exam- evidence say of law that as a matter we can not ination amount of its discretion trial court abused judgment. alimony and such

Judgment affirmed. J., J., Myers,

Ryan, J., Cooper, concur. C. Reported in 182 E. 2d 593. N. Note. — et al. v. Hockema

Christiansen 18, 1962. Rehearing April 19,341. Filed [No. May 28, 1962.] denied *2 Hanly Hammel, Jr., H. Lafayette, appellant. of for ' John, Vernon E. Lafayette St. of and Fraser & Isham, Fowler, appellees. of for Appellant complaint a filed in the trial

Gonas, J . seeking court to recover ($3,000.00) three thousand dollars, gave appellees escrow, that she to to in hold pursuant purchase offer to certain residential property Lafayette, which is located in West Indiana. complaint

The (3) paragraphs. is in three The first complaint paragraph money is for had and received. paragraph complaint The second sounds conver- sion, and theory inducement fraudulent is the paragraph complaint. third Defendants filed joint paragraph. answers in denial to each appellant paid

Evidence shows that appel- lees, the sum of Five ($500.00) Dollars, Hundred money deposit, Twenty earnest Five Hundred ($2500.00) Dollars balance of the pay- down property question. ment on the here in that avers she had no written contract and that she received no offer, consideration for her sought thus Appellees argue she rescind said offer. appellant that has a per- not shown total failure to prepared tendered, that a form and deed was ap- pellant actually possession. she went that into changed appellant Later her mind and wanted money back. Appellee pays part contends that “where vendee purchase money pur- on a verbal contract estate, chase of real he refuse accept cannot money paid.” deed and recover

Appellees property appellant resold the after re- complete fused transaction. record shows tendered, appellant possession deed and abandon- property by appellant. ment of said jury.

Trial was held without judgment plaintiff-ap- The court entered pellant nothing by complaint here take reason of her against appellant. and assessed the costs Appellant moved for a trial the court new on the grounds that the decision of the court sus- evidence, tained sufficient and the decision *3 contrary to is law. Said motion was court overuled and ruling assigned that is error. argues

Appellant decision that the of the is court by evidence; not sustained sufficient the decision of contrary may court the is to We law. not argument consider the that the decision of the by court is sustained sufficient not evidence. proof had the of burden in the trial court negative nega and suffered a decision in that court. A may appeal, by tive decision be attacked on the not party proof who had the burden of court in the trial ground by on that the such decision is sustained Bishop, (1959), Metrailer sufficient evidence. v. App. 77, only 162 N. E.

Ind. 2d 94. This leaves argument contrary that the decision of the court is to law. determining

In whether or not the decision law, contrary trial to we court is must determine to denied or not whether relief was under the evidence. she was entitled which supra. v. Bishop, Metrailer (1952), 230 Ind. v. Co. As Pokraka Lummus said in 669; 523, 532, 104 N. E. 2d conflict only where evidence is without “It is and trial conclusion and the lead to but one can conclusion, opposite an has reached court be trial will court that decision ground con that it is aside set As v. Williams & Losche Sons trary & law. App. 2d 78 N. E. (1948), 118 sociates Ind. 447. . .” argument is con- support that decision

In of her argues is trary law, appellant the decision contrary, (1) requiring To for the law contracts the sale writing supported by between lands to be parties; competent (2) permitting To the law of an offeror contracts any withdraw offer time it his before party made; accepted whom it is requiring (3) parties the law To of contracts express comply a writ-

to ten with conditions of damage or be contract held liable breach; agent (4) agency requiring an To the law dealing loyal property when with the be to a trust principal; of a agency agent (5) an To the law which holds property prin- of his liable for conversion of the use; cipal own to his agency prohibits (6) which the law To dealing agent capacity, principal his in a from with dual *4 benefiting deception; from his and by (7) law as sustained sufficient To the agent that, dealing an with show as to evidence principal, the transaction was fair defendant’s and equitable, arid failing require the defend- (8) law in To the had $3,000.00 the repay with interest ants plaintiff and withheld the from received and and without or cause reason from her without her consent. argument are foregoing specifications of

None question to whether or present as adequate to contrary to law. We the court is not the decision to be in con find it evidence have examined v. Lummus Pokraka presented. all issues on flict Co., supra. establish that appellant fails to

The brief of denied which was her to relief evidence entitled by decision. court’s

Judgment affirmed. J., J., Pfaff,

Kelley, concur. P. opinion. Bierly, J., dissents with Dissenting Opinion by appellant an action J . This Bierly, County, brought Tippecanoe Superior in the Court to recover Benton Circuit Court thence venued placed Hockema with and Son sum of $3000.00 Board, Lafayette Real Estate Agency, Member purchase price payment set part on the escrow estate, hereinafter in an described Purchase, upon and conditions therein terms Offer to set forth. signed, appears at was

Said Offer instrument, day heading the 18th of such by October, contained conditions 1950. It substantial provide abstract of requiring title the owner showing competent mer- abstracter certified encumbrances, ex- “free of all title liens chantable any except herein and restrictions ánd cept as stated *5 422 record”; and,

easements of providing also provide owner “warranty convey deed sufficient to the entire title” to Christine purchaser.

The aforementioned Offer its en- tirety reads as follows:

“OFFER TO PURCHASE Adopted by Lafayette Real Estate Board for the

exclusive use of the members

Lafayette, Indiana 18,1950 October To: member, AGENCY, Lafayette &

HOCKEMA SON Board, Real Lafayette, Estate Indiana.

I hereby purchase owner, through offer to from the you broker, property as his 323 known Street W. Legally Lutz Street described as follows: Lot (1) numbered one in Rusk’s Addition Town, City now Lafayette, of West EXCEPT fifty-five (55) feet off the entire South end conveyed thereof heretofore Sherrill, R. Albert November as recorded in Deed Record page 150 490. platted Said Addition is upon a part of the East half of quarter the North East (19) Township Section Nineteen Twenty- (23), North, Range (4) three Four West. Located Township. in Wabash agree pay property I the sum of following upon $13,000.00 terms: by you herewith be held in pend- cash escrow ing acceptance this offer and consummation this transaction, and the balance as follows: paid 31,1950. to be Balance pay due taxes of The owner shall taxes fall agree spring 1951 and I taxes of to assume all thereafter. possession property

The owner shall deliver 31,1950. to me on or before October owner shall furnish to me an of title abstract showing- competent certified to date abstracter *6 owner, free and or insurable title merchantable encumbrances, except stated clear of all liens and except any and easements of herein and restrictions length I am to be allowed a reasonable record.

time have said abstract examined. me, convey real or to

The shall said estate owner designate warranty writing, by I deed whomever convey me, which in- entire title sufficient delivered and this transaction strument shall be 31,1950. closed or before by way (To purchase if is used installment be contract) agreed mutually parties and between

It time is of the essence this contract and hereto that agreements and herein contained the covenants obligatory upon heirs; and ex- shall extend to be assigns respective administrators, ecutors, and parties.

A contract of sale shall be entered into between joining therein) spouse (with and his or owner purchase of myself this real sale estate according set forth be- herein on or to the terms fore .................................19....... Christine Christiansen

s/s Purchaser Christiansen Christine

Purchaser Acceptance:........................,19..... hereby undersigned accept the offer and above therein

agree on the terms estate sell stated. Humphrey Rose

s/s Hainje (Owner) (Rose Humphrey Husband (Owner)” Wife signed by As was Chris- noted the Offer to Purchase purchaser acceptance tine signed by Humphrey (under of the offer was Rose typed Hainje), Humphrey as owner. The evi- Rose clearly presented the dence factual situation that only Humphrey possessed equitable title but Rose legal that on not the title. The evidence shows Octo- 18, 1950, legal ber title to the real estate described herein in the names of Charles H. Hockema and was wife, sign Hockema, Nellie husband and who did acceptance purchase. offer to H. Hockema The failure of Charles Nellie *7 wife, signify Hockema, accep- their husband legal by tance owners the described estate as signing placed legal respon- the Offer to Purchase no sibility purchaser upon the favor the holders legal of the title. 10, 1950, appellant

The record shows that October paid provided to be held in escrow. This as $500.00 by Agency; Hockema was collected and Son the 1950, 11, ap- further that on record shows pellant paid Agency, Hockema to said and Son payment part pur- further sum of as on the $2500.00 price of chase real estate. Thus money purchaser’s was in the hands the real estate agency.

425 Son the Hoekema and Evidence that disclosed composed H. Agency partnership of Charles awas Hoekema; son, that J. Hoekema and his Robert of real H. Hoekema conducted the sale said Charles submitting form— by estate a standard described by Lafayette Real Board —an adopted Estate to Christine Offer signature elderly widow, purchaser. legal to real title

Thus the hidden owner Purchase, H. Offer Charles estate described in the Hoekema, person H. Hoekema was the as Charles same Agency, partnership of Hoekema and Son purchaser on the by paid which held the $3000.00 purchase price. Agency

I Hoekema and Son was maintain that entitling party it not a third act as an escrow agent. legal The term in a document “escrow” must significance. by legal We be measured have this its definition the term “Escrow” as and comment on Edition, Dictionary, Law Fourth stated in Black’s page 641, to-wit: scroll, deed, writing, “Escrow. A or delivered by hands of until the ance of a grantor, promisor obligor or into by person, a to be held the latter third contingency perform happening of a or condition, by him delivered and then obligee. promisee Squire grantee, v. or

to the 882; 344, 878, 2 2d Branciforti, 131 N. E. Ohio St. Barbour, 752, 509, v. 93 Or. 183 P. McPherson Development 755; Brown Mich Love Co. v. 144, 146; 1373, igan, 100 Fla. Johnson So. v. 792; Ill., 201, Wallden, 342 173 N. E. Min Oregon Land Timber Hewitt & & Co. v. nesota Co., 759.” D. C. Or. F. Inv. necessary ele- held our courts It been has delivery is an effectual to a third of escrow ment Green, v. Exr. depository. Nation person See *8 426 163; v.

(1919), 123 E. Osborne 188 Ind. N. 439; Eslinger 58 E. (1900), 155 Ind. N. Clanin v. (1888), Company Esterly Harvesting Machine 372, 21 E. 35. Ind. N. holding acceptance of the $3000.00 paid by purchaser,

purchase price Christian Chris- Agency tiansen, under the to the Hockema and Son conditions, party, third sub- as to a disinterested fails requirements stantially to the of an conform agreement. escrow

Passing legal aspect that Pur- over the Offer to nullity purchaser and the chase is as to owner binding thereby purchaser, of record Offer provision, to Purchase contained this to-wit: “A contract shall be entered into be- of sale joining (with spouse or her tween the therein) his owner myself for the sale [Purchaser] according purchase of this real estate to the forth set on or before-19-.” terms herein clarity.] [Supplied for such contract discloses no have The evidence been parenthesis (with and the words or executed his my therein) opinion joining would in spouse con- template contract. Without the owner a written of the having signed acceptance legal of the title Offer Purchase, could not the Purchaser have been even if legally contract tendered held on the equitable title. owner sought purchase rescind her offer and demanded return estate Agency. paid to the Hockema and Son contract was executed for the no valid

She averred sale thereof. perspective proper of the chain of

To obtain described, herein the evidence real estate title to the *9 prior that discloses to the sole on date the Offer to 18, 1950, Purchase owner, Daniels, Vera J. executed involving a Contract of Real Sale of Estate bar, real estate in the case in favor Hattie Rose Humphrey, buyer, February 1949; 2, on that 1, 1949, on December Daniels, the said J. Vera an un- adult, conveyed married said described real estate to Charles H. Hockema, Hockema and Nellie husband wife, by warranty deed, and which deed was recorded on month; the 15th of the same that on the said date 18, 1950, of October Humphrey when appar- Rose signed ently the Offer to Purchase she awas married woman, 20, 1950; but obtained a divorce October that N. Hockema, Charles Hockema and Nellie husband wife, and warranty executed a conveying deed in estate described this cause in favor of adult, Christine an unmarried on Octo- 26, ber 1950 and appellant tendered said deed to who accept repeated refused same and who her de- paid; mand for return of the that on said date of October Humphrey, Rose an un- woman, conveyed by quit married claim deed her in- described real terest estate to H. Charles Hockema, wife, Hockema and Nellie husband and conveyance 13, 1950; which was recorded November finally 30, 1951, and, June on Charles H. Hockema conveyed by Hockema, wife, and Nellie and husband warranty herein deed said real estate described to Quintiliant, Quintiliant Mary husband and Dan day. same wife, recorded and said deed was filing of the prior to executed All instruments were 23,1952. April complaint on complaint paragraphs three filed a received, contract of money breach had inducement money paid false under

agency, and for in three filed answer Appellees and converted. paragraphs thereto. for determination the trial court

The issue before to have entitled appellant was was whether been had amount returned of $3000.00 pursuant placed brokers the real estate with estate de- certain real aforesaid Offer scribed therein. jury. made trial court

Trial was had without finding entered of law but no nor conclusions of facts following judgment: Court, hav- this cause “Comes now the ing on the Plaintiff’s been heretofore submitted *10 complaint separate answers the Defendants’ and agree- by complaint paragraphs of to the three jury, evi- intervention of a ment without the advise- taken under dence heard the same and following ment, ENTERS the the now Court judgment: CONSIDERED, AND AD- “It ORDERED plaintiff by the take the JUDGED Court complaint nothing by further and that her reason of of this action pay Plaintiff the costs taxed at $14.35.” equity. itself as one in

This action resolved According title, the record of chain of Hockema, H. Hockema and Nellie husband Charles equitable by acquired the wife, title held and Rose by quit deed, Humphrey, claim shown virtue the consideration not dis- dated payment from H. received Charles Hockema closed but Hockema, wife, appar- and and Nellie husband deposited by ently appellant out of the with $3000.00 Agency. date, Hockema and Son That on said Hockema, H. Hockema and Nellie husband Charles warranty wife, deed to and executed estate in herein described favor Christine adult, pro- which an and unmarried according posed warranty the evidence con- deed paragraph, this to-wit: tained grantee agrees “The herein named assumes and mortgage pay in favor first payable Building City and and made to the Star Lafayette, Loan Association of Indiana.” signed by appellant

The Offer to Purchase contained provision any liens no or encumbrances but she containing by warranty was to have title deed none any excepting restrictions of record. easements legally accept was bound to such right legal proposed deed and was in to refuse to accept By appellees’ the same. virtue of failure to sign legal Order to Purchase owners as acknowledgment acceptance of said Offer signed legal by appellant, relationship no appellant had been entered into and between the appellees. deposited by appellant, The diversion of the funds irregular my opinion, unjustifiable, was il- legal.

Finally, appellees callously applied appel- when deposited purchase price lant’s funds divest Humphrey estate, interest of Rose said real failing appellant’s upon and after to return de- funds Quintili- mand, appellees said real sold estate to *11 legal grounds appellees ants as aforesaid. had no Since successfully proceed upon by way spe- which to they performance, why cific it is understandable did remedy. of that avail themselves my judgment opinion It is trial law, contrary court and that this cause be re- enter manded to the trial court with instructions judgment Christine Chris- favor tiansen. Reported N. E. 2d 786.

Note. —