Boldt v. Early
| Decision Date | 26 February 1904 |
| Docket Number | 4,665 |
| Citation | 70 N.E. 271,33 Ind.App. 434 |
| Parties | BOLDT v. EARLY |
| Court | Indiana Appellate Court |
Rehearing denied May 17, 1904.
Transfer denied June 28, 1904.
From St. Joseph Circuit Court; W. A. Funk, Judge.
Suit by Hilary Early against August Boldt. From a judgment for plaintiff, defendant appeals.
Reversed.
F. E Osborn and W. A. McVey, for appellant.
F. R. Liddell and T. E. Howard, for appellee.
The appellee sued the appellant for specific performance of a contract for the sale of land. The facts, as stated in the court's special finding, were substantially as follows: July 20, 1899, the appellant was the owner in fee simple and in possession of a certain tract of land in Laporte county, Indiana, and the legal title thereof was still in him at the date of the court's finding. At the date first above mentioned the appellant entered into a written contract with the appellee for the sale of this land. By the terms of the contract, which was signed by both parties, and dated July 20, 1899, the appellant agreed to sell to the appellee the land in question, described, for the sum of $ 2,300, August 25, 1899, the appellee paid the appellant under the contract $ 490, the latter accepting the same, and receipting to the former therefor. July 24, 1900, the appellee paid the appellant upon the contract $ 15.77, which the appellant accepted, receipting to the appellee therefor. July 24, 1900, the appellant caused a letter to be written to the appellee, which the latter received about the same date, advising the appellee that the time was past due for making the second payment of $ 500, which, by the terms of the contract, was to be made in six months from the date of the contract, and which, therefore, was due January 20, 1900, and informing the appellee that the appellant wanted to know soon what he was going to do about it; to which letter the appellee replied, July 31, 1900, saying he would see the appellant before long, and would settle matters with him for the land. At the time of the making of the contract the appellee was a man of business experience, and was engaged in the real estate business, which he had been following for more than thirty years; and the appellant was a German, unable to read or write in either the German or the English language, and could talk the English language only brokenly, and understood it with difficulty. He had lived in the neighborhood of the land in question for thirty-one years. At the time of the making of the contract, the appellee went to the home of the appellant, and prepared the contract himself, and it was there signed by the appellee, and was signed in the name of the appellant, in his presence, and with his consent, by the appellant's son; and at the same time the appellant informed the appellee that the former was selling the land because he was in debt, and wanted to use the money he would derive from the sale for the purpose of paying his debts; and, in fact, the appellant was in debt to the amount of about $ 1,300, and he used the $ 500 paid him as aforesaid by the appellee to pay a part of said indebtedness immediately upon the payment of the same to him.
On or about August 30, 1900, the appellant with one Henry Jahns, a neighbor, who acted as an interpreter for the appellant, called upon the appellee in the city of Laporte, and demanded of the appellee that he pay the $ 500 then past due; and the appellee then informed the appellant that the former had no money, and could not get any then, and could not make the payment. The appellant informed the appellee that the former needed the money to pay his debts, and the appellee then stated to the appellant that the former expected to sell a piece of land in a short time, from which he would get money to make the payment, and that he would make the payment soon; and the appellant then informed the appellee that unless he made the payment by Christmas, he could not have the land, and that the appellant would sell it to some one else. On or about October 1, 1900, Herman Boldt, a son of the appellant, at the latter's request, again called upon the appellee in the city of Laporte, and inquired of him if he had as yet arranged to make the payment, to which the appellee replied that he could not pay then; that he had not yet been able to raise the money, but he would do so soon; in response to which Herman Boldt informed the appellee that unless he made the payment by Christmas, he could not have the land, but the appellant would sell it to some one else. The appellee did not make any further payment before Christmas, 1900, and did not go to the appellant and give him any further information, or make any other arrangement with him whatever; but February 9, 1901, he left the State of Indiana, and did not return until July 4, 1901. July 5, 1901, the appellant entered into a written contract with one Charles H. Tuesburg, by which the appellant promised and agreed to sell and convey the land in question for the price of $ 4,000, of which Tuesburg at the time paid the appellant $ 200, which the appellant used and applied to the payment of his debts; but the appellant at the date of the court's finding had not executed to Tuesburg any deed of conveyance for the land.
At the time of the making of the contract of the appellant and the appellee the land in question was marsh land, uncultivated and unimproved, and there was a growing demand for such lands in that neighborhood, and such lands were increasing in value, of which fact the appellee had knowledge, and the appellant also knew that the land in controversy was increasing in value, and he fully understood the value of the land, and understood the contract between him and the appellee and all its provisions; and when the appellant and Jahns called on the appellee August 30, 1900, the appellant had learned and knew that the lands in the neighborhood in question were increasing in value. From the early spring of 1899 to August 30, 1901, the land in question had gradually increased in value, about twenty-five to forty per cent. July 11, 1901, the appellee learned that the appellant had entered into a contract for the sale of the land to Tuesburg, and the appellant on that day informed the appellee that the former had sold the land to Tuesburg. Thereafter, on August 30, 1901, the appellee called upon the appellant at his home and offered him, first, $ 660, and presented three notes dated August 30, 1901, signed by the appellee, and payable to the appellant, two of them for $ 500 each and one for $ 300, due on or before one, two, and three years from date, respectively, with interest at the rate of six per cent. from date until paid, and a mortgage on the land in question securing the notes, signed and acknowledged by the appellee, and demanded of the appellant that he execute to the appellee a deed for the land. Immediately thereafter, on the same occasion, the appellee offered the appellant $ 1,160 and two notes, signed by the appellee, and payable to the order of the appellant, dated August 30, 1901--one for $ 500, due on or before one year after date, and the other for $ 300, due on or before two years after date--and also offered a mortgage on the land to secure the notes, executed and acknowledged by the appellee; in response to which the appellant stated to the appellee that he had sold the land. At the time for the payment of $ 500 and the delivery of the deed, January 20, 1900, neither party did anything toward the performance of the contract. August 31, 1901, the appellee brought this suit in the Laporte Circuit Court, and filed in the office of the clerk of that court a lis pendens notice of the bringing of the suit. The appellee did not at any time after the making of the contract in suit until August 30, 1901, offer to pay the $ 500 which came due January 20, 1900, nor did he during that period execute or offer to execute notes and mortgage for the deferred payments. At all times from the date of the contract up to Christmas of the year 1900, the appellant was ready, willing, and able to accept and receive the payments and notes and mortgage and execute and deliver to the appellee a warranty deed conveying title to the land in accordance with the contract. He never executed or tendered to the appellee a deed of conveyance for the land. August 11, 1900, the appellant authorized the appellee to cut the grass on the land, which he had done. April 12, 1901, the appellee paid to the treasurer of Laporte county $ 11.52 for the taxes assessed against the land for the year 1900. The court found that about the end of August, 1900, the appellant agreed with the appellee to an extension of the time for making payment upon the contract until Christmas, 1900. August 30, 1901, the appellee went to the appellant prepared to pay the money then due from the former to the latter upon the contract, and prepared to execute the notes and mortgage for the balance of the purchase money for the land, and prepared to tender said money and said notes and mortgage, but...
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