Baldwin v. Siddons
| Decision Date | 01 July 1910 |
| Docket Number | No. 6,722.,6,722. |
| Parties | BALDWIN et al. v. SIDDONS et al. |
| Court | Indiana Appellate Court |
Appellees in their petition for rehearing insist that this court did not properly consider the averments of what they term the original complaint, and which was introduced in evidence by appellees. This complaint substantially averred that appellant Mary L. Baldwin was the owner of the land in question, and also a flowing well adjoining; that on November 2, 1900, she sold said land to appellees, and caused the same to be conveyed to them, together with the right to use said well, said land and said well being of the value of $3,500; that Lewis J. Baldwin was the owner of personal property of the value of $1,000; that at that time it was agreed between said appellees Siddons & Siddons and Lewis J. Baldwin that if she, appellant, would convey said land to Siddons and permit them to use the water from said well, they, appellees, would erect an ice plant thereon and proceed to the manufacture of ice; that they would incorporate said company and issue to appellant and said Lewis J. Baldwin the equal one-third of the stock thereof; that, after said conveyance of appellant, said Siddons did incorporate and did erect the plant and begin the operation of the same, but issued all of said stock to appellees Siddons & Siddons, and refused to issue any to appellant; that appellees have purchased the interest of Lewis J. Baldwin in said plant, and he has no interest in said suit. Prayer for damages in the sum of $3,000.
It was shown by uncontradicted testimony that appellant Mary L. Baldwin had never stated to her attorneys that she and Lewis were jointly interested in the transaction, and that she had made no statements to her attorneys that would warrant them or either of them to aver in her complaint any fact from which such joint interest could be inferred; that this complaint was drawn and filed by an attorney who had never talked to Mrs. Baldwin about the matter at all; that his information upon which he based the complaint was derived from notes made by his partner who had been employed by Mrs. Baldwin and Lewis J. Baldwin to prosecute a suit for each of them; that Mrs. Baldwin and Lewis J. had each stated their cause of action to their attorney at the same time and he had made notes of their statements on the same pad and had rolled them up together and placed them in his desk, and from these conglomerate notes the attorney, in the absence of his partner who had made them, drew the complaint and filed it without submitting it to either of appellants. It was also shown without contradiction that, as soon as appellant Mary L. Baldwin heard the complaint read, she immediately repudiated it, and declared that she had never made any such statements as showed or tended to show that she and Lewis J. Baldwin were in any way jointly interested; that she had sold her land to the Siddons, and what she wanted was a suit to recover her money; that soon thereafter an amended complaint was filed substantially the same as the complaint upon which the case was tried. Thereafter, it having been discovered that Mary L. Baldwin and her husband, William Baldwin, were the owners of the interest in said land as tenants by the entireties, a second amended complaint was filed naming William Baldwin party plaintiff with Mary L. Baldwin. Under these circumstances, we do not think the averments of the complaint standing alone as they do in this case are sufficient to furnish any proof that Lewis J. Baldwin was the agent of appellants in the sale of appellants' land to appellees. We have in no sense weighed the evidence. If we were permitted to do so, the decision would be attended with little difficulty.
Appellees have challenged other statements as to facts as set out in the opinion. We have re-examined the record carefully, and find that in each of said instances appellees' positive statements are found to be incorrect and not sustained by the record, except the first, which was a clerical error, clearly apparent as such and has been corrected in the opinion.
Petition for rehearing denied.
This action was brought by the appellants to recover the purchase price of land alleged to have been sold by them to appellees, and to enforce a vendor's lien thereon. It appears that appellants were in possession of the premises under a written contract for the sale thereof to them by one Wright, who held the legal title thereto, and by the terms of the contract was bound to execute a deed therefor to appellants or their assigns on the payment of the purchase price as therein stipulated. The original complaint was filed in the case on the 2d day of September, 1904. This was superseded by an amended complaint, filed December 19, 1904. Issues were formed and the cause tried on this amended complaint. The amended complaint charges that a verbal contract for the sale of the premises was entered into between the parties, by the terms of which appellants were to surrender to appellees the possession of the premises, and to cause the said Wright to convey the same to them by a proper deed of conveyance, in consideration of which the appellees were to pay appellants $2,500 to be paid to the said Wright in performance of the contract of sale between appellants and Wright. It is alleged that this contract was executed on appellants' part by putting appellees in possession of the premises and causing Wright to make a deed to them for the same, and that appellees failed and refused to comply with its terms on their part, except as to the payment of the $500 to Wright. To sustain this complaint, the appellants testified that upon a certain occasion in October, 1900, the parties made a verbal contract as charged in the complaint; that no note or other evidence of the indebtedness created by the transaction from appellees to appellants was executed, but that appellees verbally promised to pay to appellants the balance of the $2,000 as soon as they should have completed an ice factory upon the premises; and that the ice factory was completed and in operation in June or July following, and that to carry out the terms of the contract, at the request of appellees, the appellants indorsed on the written contract of sale which they held from Wright an assignment thereof to the Crystal Ice & Cold Storage Company, and delivered the same to appellees; the Crystal Ice & Cold Storage Companybeing the name of the corporation which the appellees and appellants' son, Lewis Baldwin, organized to carry on the ice business.
Appellants' witness, Wright, testifies that the written contract referred to, with this assignment on it, was presented to him by the appellee William Siddons, the balance due him on the purchase price of the premises paid him by appellees, and that he thereupon took up the contract and executed a deed for the premises to appellees, and at the same time surrendered to them the notes which he held on the appellants, evidencing the indebtedness due from them to him on account of the land.
Appellees each testify that they made no contract of any kind with appellants for the purchase of the premises in question. They admit taking the...
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