Conley v. Brummit , 14161.

• Decision Date: 01 July 1931
• Docket Number: No. 14161.,14161.
• Citation: 176 N.E. 880,92 Ind.App. 620
• Parties: CONLEY v. BRUMMIT et al.
• Court: Indiana Appellate Court

92 Ind.App. 620

176 N.E. 880

CONLEY

v.BRUMMIT et al.

No. 14161.

Appellate Court of Indiana, in Banc.

July 1, 1931.

Appeal from Municipal Court, Marion County; Harvey S. Graybill, Special Judge.

Action by Morris E. Conley against Leslie W. Brummit and others, trustees of the Broad Ripple Christian Church. Judgment for defendants, and plaintiff appeals.

Affirmed.

Linder & Pavey, of Indianapolis, for appellant.

Johnson & Zechiel, of Indianapolis, for appellees.

LOCKYEAR, J.

This was an action brought by appellant against the appellees on a contract for commission for services in selling real estate, under the following contract, to wit:

“Indianapolis, Indiana, March 14, 1928.

“For and in consideration of the sum of one and no/100 Dollars, the receipt of which is hereby acknowledged, I hereby grant and give to Morris E. Conly of the City of Indianapolis, Indiana and his assigns, the sole and exclusive right and option for the period of thirty days from this date, to sell for us the following described real estate in Marion County, Indiana, to wit: Lot #7 in J. S. Mustard's Broad Ripple Add. at and upon the following terms and conditions, to wit: Thirty-six hundred and seventy-five dollars ($3675) cash. One Hundred and seventy-five dollars ($175) of said consideration to be deducted and paid to Morris E. Conly, any purchaser under this option is hereby authorized and directed to deduct one hundred and seventy-five dollars from the amount due us and pay to Morris E. Conly for his services.

“In the event that this option is exercised within said time, I obligate myself to furnish a full and complete abstract of title to said real estate, exhibiting in me a good and indefeasible estate in fee simple, free and clear of encumbrance except taxes for the year 1928 payable in 1929 and to execute and deliver a general warranty deed in fee simple for said premises, contemporaneous with the payment of said purchase price, subject to the following encumbrances: Barrett Law assessment for sewer in alley. This option to be effective must be exercised in writing endorsed thereon, and by a written notice addressed and mailed to me at the following address, c/o L. W. Brummit, Mail Press, and in the event the same is so exercised, I agree to furnish said abstract and tender said deed within - days from the date said option is exercised.

“Broad Ripple Christian Church

“George H. Hawkins, Trustee

“Arthur B. Cravens, Trustee

“L. W. Brummit, Trustee.”

The appellant alleges in his complaint that he did on a later date, and within the time fixed by the contract, find a purchaser who was ready, willing, and able to purchase said property on the terms and conditions aforesaid, and he notified the appellees thereof. That the appellees thereafter sold said property to the parties that the appellants introduced to them, but that they failed and refused to carry out the contract, and failed and refused to pay the appellant the sum of $175 which they agreed to pay, for which amount he prays judgment.

The appellant filed an answer in general denial to the complaint. There was a trial and finding for the appellees. The error assigned is the overruling of appellant's motion for a new trial, which was on the grounds that the decision of the court is not sustained by sufficient evidence, and is contrary to law.

The appellant introduced in evidence a written proposition from the board of school commissioners of Indianapolis as follows: “Mr. Morris E. Conly, Agent. The Board of School Commissioners of the City of Indianapolis, Indiana, hereby agree to purchase from the owner or through you his agent, the property known as Lot Number Seven (7) in J. S. Mustard's Broad Ripple Add. in Marion County, in the State of Indiana, now located in the City of Indianapolis, Marion County, Indiana. The purchase price of said property to be the sum of Thirty-nine Hundred ($3900) Dollars, upon the following terms, viz: A 11 Cash. Cash to be paid upon the delivery of a good and sufficient warranty deed, as and when bonds be sold by said Board with the approval of the Board of Tax Commissioners of the State of Indiana, to purchase said before described real estate. The matter of the issuance of said bonds is now pending before said State Board of Tax Commissioners, and said real estate to be paid for out of the proceeds of the sale of said issue of bonds when authorized by said state Board of Tax Commissioners. Complete possession to be given upon the delivery of the deed, said real estate to be conveyed to said Board of School Commissioners free and clear of all liens including taxes. Said Board of School Commissioners after the approval of said issue of bonds to be furnished, free of charge, as the same can be prepared, a complete abstract, certified to date showing a merchantable title to above described real estate or a policy of title insurance guaranteeing the title to above real...