Boruff v. Hudson
| Decision Date | 05 June 1894 |
| Docket Number | 16,575 |
| Citation | 37 N.E. 786,138 Ind. 280 |
| Parties | Boruff v. Hudson |
| Court | Indiana Supreme Court |
From the Lawrence Circuit Court.
Judgment is affirmed.
N Crooke and M. Owen, for appellant.
The appellee sued the appellant by complaint in two paragraphs the first demanding specific performance of a contract to convey real estate, and the second demanding damages for a failure to convey said real estate under such contract.
The essential facts alleged were that one Walls procured a written contract for the conveyance to him of a certain tract of land; that subsequently thereto Walls executed a written contract whereby he obligated himself to convey to the appellee certain described parts of said tract, in the event of a conveyance to him under the terms of the first mentioned contract; that by an agreement of the parties to said two contracts and the appellant, said first named tract was to be conveyed to the appellant who was to perform the stipulations of said two contracts as to said Walls; that the conveyance of the first mentioned tract was made to the appellant, and that he refused to comply with the terms of the contract, by which said conveyance to the appellee was to be made. Issues were formed, and upon a trial and special findings and conclusions of law there was a decree in favor of the appellee, awarding specific performance, and directing a conveyance, by commissioner, of parts of the real estate sought by the complaint.
Overruling a motion to strike out parts of a complaint is not such error as to require a reversal where it is not manifest that the moving party has been prejudiced by the ruling. The appellant was not prejudiced by the ruling upon his motion to strike out parts of the complaint.
Objection is made that the court overruled the appellant's motion to strike out an interrogatory propounded by the appellee and filed with the complaint. The record discloses no answer to this interrogatory, and we perceive no prejudice to the appellant by an interrogatory which he did not answer.
Under the demurrer to the complaint, the appellant insists that the appellee was not a proper party in interest; that no consideration moved from the appellee to Walls or to the appellant to support a promise to convey to him, and that the appellant's contract, not having been in writing, was void under the statute of frauds, both as to the second and fourth subdivisions of section 1, of said statute, R. S. 1881, section 4904; R. S. 1894, section 6629.
The theory of the suit was that Walls, holding a contract of purchase, and having agreed to convey to Hudson, upon the performance of such contract, disposed of the fruits of that contract to Boruff, who, as the consideration therefor, assumed the obligations of Walls under both such contracts; that Boruff having received and accepted the fruits of such contract could not avoid the consideration therefor.
A promise to pay purchase-money to a third person to the credit of the grantor is not a promise to pay the debt of another within the meaning of the statute of frauds. Bateman v. Butler, 124 Ind. 223, 24 N.E. 989; Wolke v. Fleming, 103 Ind. 105, 2 N.E. 325; Carter v. Zenblin, 68 Ind. 436; Crim v. Fitch, 53 Ind. 214; Haggerty v. Johnston, 48 Ind. 41; McDill v. Gunn, 43 Ind. 315; Helms v. Kearns, 40 Ind. 124; Snyder v. Robinson, 35 Ind. 311; Woodward v. Wilcox, 27 Ind. 207; Gwaltney v. Wheeler, 26 Ind. 415.
In Wolke v. Fleming, supra, the contract assumed by parol was a lease in writing, for ten years. It was held that the promise to pay rents, under the contract so assumed, was not within the statute of frauds as an agreement to pay the debt of the lessee. There is no difference in principle between the question so decided and that now under consideration. There it was strongly intimated, and we have no doubt correctly, that, though the promise forming the consideration was within the statute of frauds, if there were a full performance of the contract by which the promisor obtained the fruits of the contract, such part performance would take the promise out of the statute. Here, as between Walls and Boruff the two...
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