Decatur Mineral & Land Co. v. Friedman
| Decision Date | 29 March 1900 |
| Parties | DECATUR MINERAL & LAND CO. v. FRIEDMAN. [1] |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, McCracken county.
"To be officially reported."
Action by the Decatur Mineral & Land Company against Joseph L Friedman on certain promissory notes. Judgment for defendant and plaintiff appeals. Reversed in part.
L. D Husbands and W. H. Holt, for appellant.
Clarence Dallam and Henry Burnett, for appellee.
The appellant instituted this action in the McCracken circuit court against the appellee, seeking to recover a judgment upon three notes executed for $500 each, subject to certain credits. The substance of the answer and counterclaim of the defendant is that the notes were given as part purchase money for certain town lots in Decatur, Ala., or, in other words for lots in the 34 acres owned by the plaintiff, which seem to have been divided into town lots, and that the plaintiff falsely and fraudulently represented to the defendant that it would in the near future establish a street railway along and by said lots, and make various other improvements described in the answer, and that such representations were false and fraudulent, and so known by the plaintiff, but were relied on by defendant, and but for the same he would not have made the purchase. He also denied the title of plaintiff to the lots in question. After the issues were fully made up, the court adjudged a rescission of the contract and cancellation of the notes, and rendered a judgment over against the plaintiff in favor of defendant for the amounts paid by him on the purchase aforesaid; and from that judgment this appeal is prosecuted.
It is insisted for appellant that the defendant could not be allowed to allege or prove a parol contract not embraced in the bond or writing executed in regard to the sale of the lots, and numerous authorities are cited in support thereof. It appears in this record that in October, 1891, the plaintiff instituted suit in the state court of Alabama for the purpose of obtaining a sale of the lots in question to satisfy the purchase money due thereon, and that such proceedings were had that a judgment was rendered adjudging the sale thereof, and that plaintiff purchased the lots at the price of $150, and obtained a deed therefor. But during the progress of this suit the plaintiff tendered a deed to the defendant for the lots in question, conditioned upon his paying the entire purchase money due. It is further insisted for appellee that the delay upon the part of plaintiff in tendering the deed to defendant should debar it from asking for a specific enforcement of the contract. It does not appear that defenda...
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