Allah Farms, Inc. v. Horner
| Decision Date | 30 March 1936 |
| Docket Number | No. 15145.,15145. |
| Citation | 102 Ind.App. 537,200 N.E. 740 |
| Parties | ALLAH FARMS, Inc., v. HORNER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Marshall Circuit Court; Albert B. Chipman, Judge.
Action by Allah Farms, Incorporated, against John W. Horner. Judgment for defendant, and plaintiff appeals.
Reversed, with instructions.
McKesson & Kizer, of Plymouth, and Thad M. Talcott, Jr., and Walter R. Arnold, both of South Bend, for appellant.
Orville W. Nichols, of Knox, and Alvin F. Marsh, of Plymouth, for appellee.
Appellant brought this action against appellee to recover judgment on five promissory notes, executed by appellee to Melrose Properties, Inc.; said notes having been assigned and transferred from said Melrose Properties, Inc., to appellant. The complaint is in one paragraph; and appellee filed answer thereto in five paragraphs:The first a general denial; the second a plea of payment; the third alleging that plaintiff (appellant) is not the owner and holder of the notes in suit, and not the proper party to bring this action; the fourth that there was no consideration given for the notes in suit, and that the plaintiff took said notes with full knowledge thereof, and after maturity. The fifth paragraph alleges in substance that the consideration for the execution and delivery of the notes in suit has failed by reason of the fact that such notes were executed by appellee in connection with the purchase by him of certain described real estate located in Dade county, Fla., under an executory contract made between appellee and appellant's assignor, Melrose Properties, Inc., whereby appellee agreed to pay $3,600 for said real estate, the deed to same to be delivered when one-fourth of the purchase price was paid; that said contract was dated August 28, 1925, and on said day appellee paid to appellant's assignor the sum of $360, and thereafter, on September 28, 1925, paid the further sum of $540, constituting one-fourth payment of the purchase price, and that appellee did execute the notes sued upon, together with a mortgage on the real estate purchased, securing said notes, and did deliver said money, notes, and mortgage to appellant's assignor; that said assignor wholly failed and refused to deliver to appellee any deed for said real estate, and did thereby breach the contract to convey; that after said breach occurred, and while appellant's assignor still failed, neglected, and refused to deliver deed, to wit, on November 5, 1926, appellee notified appellant's assignor by letter that it had broken the contract to convey, and that appellee would not be bound by said contract, and demanded the return of the notes sued upon; that whatever value the real estate had at the time deed was to be delivered, from that time on the value thereof rapidly depreciated, until said real estate became and was worth much less than the cash payments made by appellee thereon, and became and was worthless and unsaleable, all while appellant's assignor did neglect, fail, and refuse to deliver to appellee a deed therefor; that long after said breach, and long after appellee had given notice he would not be bound by said contract, appellant's assignor did notify appellee that on or about March 26, 1927, it had executed a deed to appellee for said real estate, and had the same recorded; that if this be a fact, appellee stands ready and willing to reconvey the same to appellant's assignor or to appellant. A reply in general denial to each of the affirmative paragraphs of answer closed the issues. The cause was submitted to a jury for trial, and the jury returned a verdict for appellee. Appellant, in due course, filed its motion for a new trial, asserting as causes therefor that the verdict of the jury is not sustained by sufficient evidence; the verdict of the jury is contrary to law; error in refusing to give, and in the giving of, certain specified instructions. This motion was overruled and appellant excepted. Judgment was rendered on the verdict, and appellant perfected this appeal, assigning as error the overruling of its motion for a new trial.
At the close of all the evidence, appellant filed its written request that the jury be instructed in writing only, and tendered its instruction numbered 1, requesting a directed verdict in its favor. The court refused to give this instruction, and appellant excepted. This ruling is assigned as one of the reasons for a new trial. It is asserted by appellant that the undisputed evidence shows a right of recovery on its part, and that, therefore, the verdict of the jury is not sustained by sufficient evidence; is contrary to law; and that the court erred in refusing to give its tendered instruction numbered 1, for a directed verdict in its favor.
Appellee contends that the judgment should be affirmed as the evidence conclusively shows that appellant's assignor, Melrose Properties, Inc., failed to deliver a deed to him when he paid one-fourth of the purchase price of the lot; that such failure breached the contract; that the property purchased depreciated materially in value while appellant's assignor was in default, becoming during such time worth less than the amount he had already paid; that collection of the notes sued upon cannot be enforced under such circumstances, but the loss occasioned by the depreciation in value must fall upon the party at fault.
Many of the material facts necessary to be considered in determining the legal rights of the parties as presented by this appeal are proven by evidence that is not contradicted. Among such facts are the following: In August, 1925, appellee purchased from Melrose Properties, Inc., lot No. 19, block No. 56, in Melrose Heights subdivision, Dade county, Fla., for $3,600, making a down payment thereon of $360, and receiving the following written instrument from the seller, to wit:
“Receipt
“Price of lot $3600.00 Aug. 28th 1925
“Melrose Properties, Inc.
On September 28, 1925, appellee made an additional payment amounting to $540, which, together with the down payment, constituted one-fourth of the agreed purchase price of said lot. On December 17, 1925, appellee received through the United States mail, from E. D. Noe & Son, Inc., the exclusive selling agency for Melrose Properties, Inc., a letter inclosing a series of six notes, numbered respectively 1, 2, 3, 4, 5, and 6, and a mortgage covering the real estate in question to secure...
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