Coles v. Peck

• Decision Date: 24 June 1884
• Docket Number: 11,489
• Citation: 96 Ind. 333
• Parties: Coles et al. v. Peck
• Court: Indiana Supreme Court

96 Ind. 333

Coles et al. v. Peck

No. 11,489

Supreme Court of Indiana

June 24, 1884

From the Ohio Circuit Court.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

A. C Downey, for appellants.

J. S Jelley, for appellee.

OPINION

Niblack J.

On the 6th day of March, 1873, Eliza Peck, by an instrument in writing, mutually executed, leased to Reece N. P. Buchanan and James Buchanan, a lot of ground in the city of Rising Sun, for a period of ten years at the rate of $ 50 per year, payable annually in advance, the term to commence on the 10th day of March, 1873, and end on the 10th day of March, 1883, and the lessees to have the privilege of erecting on the lot, and occupying during their term, a two-story brick house, suitable for business purposes. The instrument contained the following additional provisions:

"And it is further agreed between said parties, and made part of the conditions of this lease, that at the expiration of the same the said lease is to be renewed and continued for another term of time of ten years on the same terms, that is to say, $ 50 per year, or the party of the first part is to purchase the building and improvements from the party of the second part, or the party of the second part is to purchase the grounds. Either one of the three is to be done, and that at the option of the party of the first part, and she shall notify the other party twelve months before the expiration of the time which one she will elect to do. And in case the lease is not renewed, and a sale is to take place as in either case above named, then each party is to choose a competent disinterested freeholder who shall appraise the value of the ground or building, as the case may be, and they shall have power, in case they see proper to choose a like third person, and the party who is to purchase shall pay to the other the amount so stated by them to be the value. And if this lease is renewed for the second term of ten years, then at the expiration of that time sale from one to the other shall be made as above stated, either the land to the party of the second part or the building to the first party, to be determined as above set forth. And all the terms, covenants and conditions of this lease shall extend to the heirs, administrators, executors or assigns of the parties to the same."

The Buchanans went immediately into possession and soon thereafter erected on the leased lot a two-story brick building of the value of $ 3,000. During the year 1877 all the interests and the estates of the Buchanans in the lease were assigned and transferred to John B. Coles and Daniel S. Wilber, who very soon went into and have ever since continued in possession of the leasehold premises.

On the 20th day of March, 1883, Eliza Peck, the lessor, commenced this action against Coles and Wilber by filing a complaint against them before a justice of the peace for the sum of $ 50, as the amount alleged to be due in advance for rent of the leased lot from the 10th day of March, 1883, to the 10th day of March, 1884. Coles and Wilber appeared before the justice and answered: First. In general denial. Second. By way of cross complaint, setting up the lease and the matters connected with it herein above referred to, and averring the performance of all the covenants and conditions of the lease on their part; also averring that the plaintiff failed to elect whether she would renew the lease, or purchase the building on the leased ground, or sell the ground to the defendants, and to notify the defendants of her election in the premises twelve months before the expiration of the term of the lease, or at any other time; that on the 3d day of February, 1883, they, the defendants, elected to purchase the leased ground, and so notified the plaintiff; that they thereupon selected Richard M. Jones, a competent and disinterested freeholder of said city of Rising Sun, as an appraiser to appraise said leased ground, fixing the time for said appraisement for the 10th day of March, 1883, and the place at the front door of the building on the leased ground, of all which they notified the plaintiff in writing on said 3d day of February, 1883; that on the 10th day of March, 1883, the said Richard M. Jones appeared at the time and place named in the above mentioned notice in writing, but the plaintiff failed and refused to select any person on her part to appraise the leased ground which the defendants had so elected to purchase; that the plaintiff so failing and refusing, the defendants immediately selected George B. Gibson, also a competent and disinterested freeholder of the city of Rising Sun, to act also as an appraiser of the leased ground in question; that the said Jones and Gibson then and there proceeded to appraise said leased ground, and appraised the same at $ 322, of which they at once gave notice in writing both to the plaintiff and defendants; that after receiving notice of such appraisement, that is to say on said 10th day of March, 1883, the defendants tendered to the plaintiff, and offered to pay her, in legal tender United States treasury notes, said sum of $ 322, on condition that she would make and deliver to them a good and sufficient deed of conveyance for said leased land, but the plaintiff refused to accept said sum of money as well as to execute such a deed; that the defendants were ready and willing to pay said sum of money on the condition of receiving a deed, and would pay the money into court at any time when required so to do, as a means of obtaining a specific performance of the contract contained in the lease. Wherefore the defendants demanded a specific performance of said contract, and damages in the sum of $ 3,000, as well as all other proper relief.

The justice certified the cause to the circuit court, upon the ground that the matters alleged in the cross complaint put in issue the title to real estate.

In the circuit court a demurrer to the cross complaint was sustained, and a trial resulted in a finding and judgment for the plaintiff in the sum of $ 50.

Error is first assigned upon the decision of the circuit court sustaining the demurrer to the cross complaint; but as preliminary to the consideration of the question of the sufficiency of that pleading, the appellee has moved to dismiss this appeal, upon the ground that the action was commenced before a justice of the peace, and that the amount in controversy below did not really exceed $ 50.

In determining the amount in controversy upon an appeal to this court in a cause originating before a justice of the peace, we must look to the set-off, counter-claim or cross complaint as well as to the complaint. Shriver v. Bowen, 57 Ind. 266; Bowlus v. Brier, 87 Ind. 391.

Taking into consideration the cross complaint as well as the complaint in this cause, we find much more than the sum of $ 50 in controversy. The motion to dismiss this appeal can not, therefore, be sustained.

The facts alleged in the cross complaint present some more novel and much more difficult questions. The first is: Did the failure of the appellee to avail herself of the option reserved to her in the lease transfer to the appellants the right to exercise a similar option on their part?

Viner in his General Abridgment, in volume 9, on page 362, says: "If a man sells trees growing upon his land, excepting six oaks, the exceptor is to have the election, and if there be a time limited, he must do it during such time, but if he slip the time, then the other shall elect." Story on Contracts, at section 816, in treating of alternative contracts, concludes: "But if the person, by his own wrong or default, lose his election,--as if he be bound, in the alternative, to do one of two things by a certain day, and he suffer the day to pass, without making an election by performing one or the other, the other party may elect which he will demand." Bouvier, in his Institutes, volume 1, section 693, holds a similar doctrine,...