Bradley v. Harter
| Decision Date | 19 April 1901 |
| Docket Number | 18,605 |
| Citation | 60 N.E. 139,156 Ind. 499 |
| Parties | Bradley et al. v. Harter |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
Affirmed.
W. S Diven, E. B. McMahan, F. A. Walker and F. P. Foster, for appellants.
T Bagot, A. Ellison and C. K. Bagot, for appellee.
Action by appellants in a complaint of two paragraphs to recover damages from appellee. The court sustained a demurrer to each paragraph and rendered a judgment against appellants for costs. From this judgment they appeal and base their assignment of errors upon the ruling of the court upon the demurrer to each paragraph of the complaint. The following may be said to be a summary of the facts disclosed by the averments of the first paragraph: On October 20, 1891, appellant Bradley, together with Harvey B. Stout and Joseph A. McCoy, entered into a written contract with appellee, Jacob H. Harter, by which the latter agreed to sell to Bradley and his said associates 46 and 49-100 acres of real estate described and situated within the limits of the city of Anderson, Madison county, Indiana. The purchase price to be paid for this tract of land as fixed by the said written contract was $ 1,000 per acre, to be paid in the manner as therein provided, which was to the effect that said purchasers, their successors or assigns, should sell town lots, into which the said land was to be divided or platted to responsible persons at such prices as might be agreed upon; one-third of the purchase price of each lot was to be paid in cash at the time of the purchase, to appellee, unless he consented to receive a less cash payment. For the remainder of the purchase price, the purchaser was to execute his note secured by a mortgage payable to appellee, and thereupon the latter, as provided by the contract, was to execute a warranty deed conveying to the purchaser said lot. The whole amount of the purchase price for each lot, received by appellee in cash and in notes, was to be credited by him in partial payment of the aggregate amount to be paid for the entire tract of land so sold, and when such credits equaled the full amount of the purchase money of said land, then appellee, under the written contract, agreed to convey the part remaining unsold to the other contracting parties, their associates, or assigns. Appellee also agreed to pay all taxes due on the land, including the taxes for 1891, after which the other parties were to pay the taxes on the real estate remaining unsold, and they were also to pay street improvement taxes. The appellee was to be at no expense whatever in regard to the sale of the real estate by said other parties. At the end of three years from the date of the written contract, it was provided that in the event a sufficient amount had been realized from the sale of the lots to pay appellee the full amount of the purchase price for his land, said other parties, their successors or assigns were then to execute promissory notes to appellee, bearing six per cent. interest, for the remainder of the purchase money due him. Such notes were to be secured by mortgages upon the portion of the land remaining unsold. Sometime subsequent to the execution of this contract, Stout and McCoy appear to have assigned all of their rights and interest in the contract to Charles M. Cooper and Victor M. Backus. The first paragraph of the complaint, after alleging the execution of the above written contract and the assignments of the respective interests of appellants Stout and McCoy therein to appellants Cooper and Backus, proceeds to allege that Bradley and the other original parties thereto, pursuant to such contract, took possession of the real estate so sold to them by appellee, and platted and laid the same off as an addition, denominating the same as Englewood, to the city of Anderson, and divided it into 257 town lots with streets and alleys, etc. That thereafter, about June 30, 1892, appellants and appellee entered into an oral contract whereby it was agreed that appellants should construct and extend the Anderson electric street railway into said addition, and should sell the lots as they could upon the consideration and terms named in the written contract. Appellee orally agreed that appellants might also procure parties owning farm or city lands who would exchange the same for lots in the said Englewood addition, said farm or city property to be offered in exchange for said lots at a fair and reasonable market value. That appellee then and thereby orally agreed that he would accept second mortgages for the deferred purchase money upon such lots as were thereafter sold, and that he would advance the money required for the improvement of Fourteenth street ordered to be improved by the common council of said city, and bear such expense of the money advanced until an amount sufficient to pay the same could be derived from the sale of lots in said addition abutting upon said street, and that he further orally agreed that he would accept in trade and in exchange farm and city real estate of a marketable value in payment of the purchase price of said lots, and for such exchange of lands accepted by him he would allow appellants a credit upon their said contract of purchase in like manner and to the same extent as they would be entitled to under said original written contract. It is then further alleged that, in accordance with their contract with appellee, appellants began to develop such land and dispose of the same, and in their efforts to do so they constructed a house on one of the lots at a cost of $ 1,500, and also incurred other enumerated expenses in developing said addition and in advertising the sale of the lots therein, etc. That pursuant to the oral contract made in June, 1892, appellants aver that they sold fifty-one lots out of said addition for the price of $ 13,223.62, which amount in money and notes was paid over to and accepted by appellee on the purchase price of the land under said written contract. The complaint then alleges that appellants procured some person, whose name is not disclosed, who was the owner of thirty-six acres of real estate situated within the limits of the city of Indianapolis, Indiana, which was of the value of $ 1,000 per acre, and who was also the owner of nineteen lots in said city of the value of $ 300 each, who was willing and offered to exchange his said real estate for a sufficient number of lots at a price of $ 300 each in said addition to the city of Anderson, which price of $ 300 it is alleged was a fair market value for said lots. That in the fall of 1892 appellants procured a person, whose name is not disclosed by the complaint, who owned a farm in Lawrence county in the state of Illinois of the value of $ 30,000, who was ready and willing to exchange his said farm for seventy-five lots in said addition, or for a sufficient number thereof to equal the price of said farm. That they also procured and furnished a person, name not disclosed, owning certain residence property or real estate in...
To continue reading
Request your trial