Herrman v. Babcock
| Decision Date | 03 November 1885 |
| Docket Number | 12,249 |
| Citation | 3 N.E. 142,103 Ind. 461 |
| Parties | Herrman v. Babcock et al |
| Court | Indiana Supreme Court |
From the Vanderburgh Superior Court.
The judgment is reversed, with costs, and the cause is remanded with instructions to overrule the demurrer to the complaint and for further proceedings not inconsistent with this opinion.
C. L Wedding, for appellant.
J. S Buchanan and C. Buchanan, for appellees.
In this case the appellees separately demurred to the appellant's complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained by the court, and the appellant having failed to amend or plead further, judgment was rendered against him for appellees' costs.
The plaintiff has appealed to this court, and has here assigned as error the decision of the superior court in sustaining the separate demurrer of the appellee Elisha S. Babcock, Jr., to his complaint.
The appellant alleged in his complaint that on the 31st day of July, 1879, the appellee leased to appellant lots numbered 1 and 2, in block No. 146, in that part of the city of Evansville known as Lamasco, Indiana, for the term of five years; that, as part of such lease and contract, it was specially agreed that the appellee would sell and convey by warranty deed, and the appellant should have the right to buy, the above described real estate, at the expiration of such lease, the price to be fixed by three committeemen, one to be chosen by appellees, one by appellant, and a third by the two first chosen, as fully set out in such lease, a copy of which was filed with and made a part of such complaint; that, under such contract, appellant took possession of such real estate, and, relying upon appellee's performing his contract in good faith, had placed during the continuance of such lease houses, mills, machinery and other lasting and valuable improvements on such lots, of the value of $ 3,000; and that such improvements can not be removed without becoming a total loss, and by his failure to secure such real estate appellant would sustain great and irreparable loss and damage; that at the expiration of such lease, and often since, appellant notified appellee of his election to take such real estate, selected Henry S. Bennett, a competent and disinterested appraiser, and asked appellee to select his appraiser, which appellee then and since had refused to do, or to comply in any manner with his contract; that appellant had been then and since, and still was, ready to carry out such contract and to pay such amount as should be fixed; that appellant had fully kept and performed all the conditions of such lease and contract upon his part, and the appellee had failed to agree, as to the price to be paid for such real estate, with the appellant; but the appellees had at all times refused to select an appraiser, or carry out in any manner his contract for the sale of such real estate.
Wherefore appellant asked for a specific performance of such contract that the appellees be required to select their appraiser, and that the appraisers chosen select a third, and the appraisement be made; and that the appellees be ordered and required to execute and deliver to appellant a good and sufficient warranty deed of such real...
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