Bandy v. Meyers

• Decision Date: 19 January 1966
• Docket Number: No. 1,No. 20308,20308,1
• Citation: 213 N.E.2d 344,138 Ind.App. 202
• Parties: Emmett O. BANDY, Appellant, v. Helen Grace MEYERS, Appellee
• Court: Indiana Appellate Court

Page 344

213 N.E.2d 344

138 Ind.App. 202

Emmett O. BANDY, Appellant, v. Helen Grace MEYERS, Appellee.

No. 20308.

Appellate Court of Indiana, Division No. 1.

Jan. 19, 1966.

[138 INDAPP 203]

Vercil O. Springer, Indianapolis, for appellant.

Smith & Jones, Harold W. Jones, Robert W. Geddes, Keith L. Andrews, Indianapolis, for appellee.

CARSON, Judge.

This action was brought in the Marion Superior Court by the appellant against the appellee for specific performance of an option to purchase land owned by the appellee.

The issues were formed by the appellant's complaint for specific performance and appellee's answer in denial. The appellee also filed affirmative answer alleging lack of mutuality, inadequate consideration, failure of consideration, vagueness and uncertainty caused by alteration, failure of appellant to tender balance due, and ambiguity in the description of the property.

Trial was by the court and judgment was entered against the plaintiff-appellant on his complaint and for the defendant-appellee on her affirmative answers.

Appellant filed a motion for new trial and assigned as error that the decision of the court was not sustained by sufficient evidence; that the decision of the court was contrary to law; error of law occurring in the admission of certain testimony over the objection of the appellant dealing with the effect and statements set forth on the option to purchase. Said motion for new trial was subsequently overruled from which ruling this appeal is taken.

The appellant assigns as the sole error that:

[138 INDAPP 204] '1. The Court erred in overruling Appellant's motion for new trial.'

The facts are essentially as follows: On the 13th day of July, 1963, the plaintiff and defendant entered into a written option to purchase certain land owned by the appellee. The consideration for said agreement was stated to be one dollar. The agreement had been prepared by the appellant and the figures, before signing, in the space indicated for the length of the option was '180' typewritten. The instrument on its face, shows that the numbers '65' were superimposed in ink over the number '80' and the numeral '1' was left as is on the instrument. Besides the figures '165' on the instrument are the initials 'K. L. A.'; 'H. G. M.' and 'E. O. B.', shown by the evidence to be the initials of Keith L. Andrews, attorney for the appellee, Helen Grace Meyers, appellee, and Emmett O. Bandy, appellant. The property concerned in the option to purchase was described in the instrument as follows:

'Property owned by Helen Grace Meyers at South West corner of West 38th Street and Guion Road consisting of 3.847 acres or the acres remaining after the State of Indiana bought the right of way. Except: Grantor reserves a plot of ground 200 feet deep and adjoining the Haywood property on the South.'

The evidence further shows that on November 27, 1963, the plaintiff sent the defendant a registered letter stating that he had the 'money in hand' and was ready to exercise his option. The defendant informed the plaintiff that she had received his letter but that 'your option had expired.' Although three copies of said option were executed, at the trial, only two were introduced, the defendant having destroyed her copy as well as the check for the $1.00 consideration when she believed that the option had expired; i. e. after 60 days. The appellant testified at the trial that although he alleged tender of the balance due in his complaint, this tender was not in fact made.

[138 INDAPP 205] The controlling question in this case is as to the length of the period of the option and whether or not the appellant had exercised his option within the agreed term and in compliance with the agreed conditions.

Various testimony was admitted at the trial stage as to the period of time encompassed by the option. The appellant claims that the instrument speaks for itself and that the period therefore was 165 days; that he exercised his option in sufficient time and that he is entitled to specific performance of the option. The appellee, at trial Testified that the period of the option was agreed to be 60 or 65 days. Keith Andrews, attorney for the appellee testified that the period of time contemplated was to be 65 days. The appellee argues that the parol testimony was properly admitted as, in situations where the meaning of the contract is ambiguous or where the contract is incomplete or an alteration has been made, the court may consider evidence of the surrounding facts,...