Doty v. Sandusky Portland Cement Company

Decision Date22 April 1910
Docket Number6,723
Citation91 N.E. 569,46 Ind.App. 440
PartiesDOTY ET AL. v. SANDUSKY PORTLAND CEMENT COMPANY
CourtIndiana Appellate Court

Rehearing denied June 22, 1910. Transfer denied November 17 1910.

From Kosciusko Circuit Court; Lemuel W. Royse, Judge Pro Tem.

Suit by Alonzo U. Doty and another against the Sandusky Portland Cement Company. From a judgment for defendant, plaintiffs appeal.

Reversed.

S. J North, Frank U. Wagner and J. M. Van Fleet, for appellants.

Miller, Drake & Hubbell and Frazer, Cook & Frazer, for appellee.

OPINION

ROBY, J.

Suit by appellants. The court sustained a demurrer to the complaint. Appellants refused to plead further, and appeal to this court.

The question arises on a written contract, which is as follows:

"This agreement made this February 14, 1898, by and between Minnie Gawthrop and John Gawthrop, her husband, of Van Buren township, Kosciusko county, Indiana, and Vanton O. Foulk trustee, of Cleveland, Ohio, witnesseth, that said Minnie Gawthrop and John Gawthrop, their heirs, executors and administrators and assigns, for and in consideration of the sum of $ 65 per acre for each and every acre of the tract or parcel of land hereinafter described, or so much thereof as said Vanton O. Foulk, trustee, his heirs or assigns shall elect to purchase under the terms of this agreement, to be paid as hereinafter set forth, shall on or before August 15 1898, at the option of said Vanton O. Foulk, trustee, his heirs or assigns, all or any part thereof, as said Vanton O. Foulk, trustee, his heirs or assigns shall elect, of that tract or parcel of land situated in Kosciusko county, Indiana, and described as follows, to wit: * * * That said conveyance shall contain the usual covenants that said premises, at the time of such conveyance, are free and clear of all demands and encumbrances whatsoever, and all other usual and reasonable covenants; that said Vanton O. Foulk, trustee, his heirs or assigns, in consideration thereof, shall well and truly pay or cause to be paid to said Minnie Gawthrop and John Gawthrop, their heirs, executors, or administrators, the aforesaid sum of $ at the time of the execution and delivery of this conveyance; that in case said Vanton O. Foulk, trustee, his heirs or assigns, shall not well and truly pay, or cause to be paid, to said Minnie Gawthrop and John Gawthrop, their heirs, executors, or administrators, the aforesaid sum on or before August 15, 1898, then and in that case this agreement shall be null and void as to both parties hereto, and neither of said parties shall in any manner whatsoever be bound thereby; that said Vanton O. Foulk, trustee, his heirs or assigns, shall erect, or cause to be erected, at or near the town of Milford Junction, Indiana, in Van Buren township, a factory for the manufacture of Portland cement, the capacity of which shall not be less than 50,000 barrels of finished product annually, said factory to be completed and in operation within a period of eighteen months from the date of the execution and delivery of the conveyance herein provided for; that in case said factory shall not be completed as herein set forth, said Vanton O. Foulk, trustee, his heirs or assigns shall reconvey the tract or parcel of land hereinbefore described to said Minnie Gawthrop and John Gawthrop, their heirs or assigns, and upon execution and delivery of such conveyance the said Minnie Gawthrop and John Gawthrop, their heirs or assigns, shall pay, or cause to be paid, to said Vanton O. Foulk, trustee, his heirs or assigns, a sum in lawful money equal to one-half the purchase price of the tract or parcel of land as hereinbefore described, paid by said Vanton O. Foulk, trustee, his heirs or assigns, under the terms of this agreement; that said Minnie Gawthrop and John Gawthrop shall have the right to use for pasturage or other farming purposes such part or parts of the tract of land herein described as may not be in use or be required by said Vanton O. Foulk, trustee, his heirs or assigns, in the process or for the purpose of the manufacture of Portland cement; that said John Gawthrop shall have the right to take off all growing crops and to remove all division fences located on the tract of land herein described; that said Minnie Gawthrop and John Gawthrop shall have the right to build temporary fences for the purpose of retaining his stock in pasture on the within described parcel of land, provided such construction of fences does not in any manner interfere with the taking of the...

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1 cases
  • Doty v. Sandusky Portland Cement Co. of Ohio
    • United States
    • Indiana Appellate Court
    • April 22, 1910
    ... ... 44091 N.E. 569DOTY et al.v.SANDUSKY PORTLAND CEMENT CO. OF OHIO.No. 6,7231Appellate Court of Indiana, Division No. 2.April 22, 1910 ... Appeal from Circuit Court, Kosciusko County; Lemuel W. Royse, Judge.Action by Alonzo U. Doty and others against the Sandusky Portland Cement Company of Ohio. From a judgement sustaining a demurrer to the complaint, plaintiffs appeal. Judgment reversed, and cause remanded, with instructions to overrule demurrer.[91 N.E. 570]S. J. North, Frank E. Wagner, and J. M. Van Fleet, for appellants. Miller, Drake & Hubbell and Frazer, Cook & Frazer, for ... ...

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