Freeman v. Falconer, 2,264.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 201 F. 785
• Decision Date: 17 January 1913
• Docket Number: 2,264.
• Parties: FREEMAN v. FALCONER et al.

201 F. 785

FREEMAN
v.
FALCONER et al.

No. 2,264.

United States Court of Appeals, Sixth Circuit.

January 17, 1913

James N. Sharp and C. N. Smith, both of Williamsburg, Ky., for plaintiff in error.

Allen & Duncan and Falconer & Falconer, all of Lexington, Ky., and O. H. Waddle, of Somerset, Ky., for defendants in error.

Before WARRINGTON and DENISON, Circuit Judges, and McCALL, District judge.

McCALL, District Judge.

This case arises out of a written contract entered into between the appellant, Edward R. Freeman, a citizen of Tennessee (hereinafter called the plaintiff), and the appellees, John A. Geary and others, citizens of Kentucky (hereinafter called [201 F. 786] the defendants). It witnesseth on the 12th day of October, 1906, the defendants agreed to sell to the plaintiff all the lands that they owned, within certain boundaries, situated in Pulaski county, Ky., and estimated to be 25,000 acres, for $4 per acre. The land is described by boundaries, and generally as tracts Nos. A, B, and C. It is provided that tracts A and B may contain not less than 8,500 acres, and that tract C may contain not less than 12,750 acres, making the minimum amount of land to be conveyed 21,250 acres.

The defendants were to deliver to the plaintiff a complete map of the lands, giving metes and bounds, and also a complete abstract of title, showing a perfect title in the defendants, and no adverse possession. The plaintiff was to have a reasonable time after the receipt of the map and abstract of title, etc., to investigate the title and to close the transaction, by the defendants executing to plaintiff, or such other grantee as he might name, a general warranty deed, conveying a perfect title to the land, on the compliance by the plaintiff with the terms of payment provided for in the contract. The defendants failed to execute the warranty deed within reasonable time, and the plaintiff filed the petition in this case, wherein are alleged the execution of the contract, and the breach thereof by the defendants, in that they failed and refused to convey or attempt to convey the lands to the plaintiff, for the reason, as is charged, that the defendants--

'have not the fee-simple or any title, or the possession of any material portion of the 8,500 acres, or more, which they undertook to convey to him in tracts A and B, and they have not the fee-simple title to, or the possession of, any but a very small portion of the 11,500 acres which they undertook to convey to him in tract C, and he says that what little land the defendants have in tracts A, B, and C is so cut up into small parcels and so surrounded by other lands, owned and in the adverse possession of other parties, that the same is wholly worthless for any purpose.'

It is alleged that the measure of damages is the difference between the value of the land at the date when defendants refused or failed to convey and the price to be paid for it, which difference is alleged to be $3.50 per acre, and, further, that after making the contract the plaintiff, in his efforts to obtain the land from the defendants, and while he was looking to them to do and perform their contract as respects the land, was necessarily compelled to expend in such efforts the sum of $2,000, all of which was lost to the plaintiff. Wherefore suit was brought for $74,375, that being the amount of the difference between the value of the minimum number of acres to have been conveyed and the contract price, and, in addition, for $2,000 as expenses, totaling the sum of $76,375.

The defendants seasonably entered a motion to strike out that portion of the petition wherein it is sought to recover $2,000 for expenses alleged to have been incurred by the plaintiff, and also filed a general demurrer, upon the ground that the petition 'failed to state facts sufficiently to constitute a cause of action against them or either of them. ' The court below sustained both the motion to strike out and the demurrer, with leave to the plaintiff to amend his petition. [201 F. 787]

This he did not do, and an order was entered dismissing the petition. To this action the plaintiff excepted, and prosecuted a writ of error to this court, and has assigned errors.

We shall not consider the action of the court in sustaining the motion to strike out, but treat the general demurrer as going to the entire petition. The four errors assigned may be treated under one general head,...