Howard v. Adkins

• Decision Date: 10 October 1906
• Docket Number: No. 20,863.,20,863.
• Citation: 78 N.E. 665,167 Ind. 184
• Parties: HOWARD v. ADKINS.
• Court: Indiana Supreme Court

167 Ind. 184

78 N.E. 665

HOWARD

v.ADKINS.

No. 20,863.

Supreme Court of Indiana.

Oct. 10, 1906.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by Daniel V. Howard against Guy Adkins. From a judgment for defendant, plaintiff appeals. Reversed.

Chase Harding, for appellant. Thomas & Foley, for appellee.

MONKS, J.

This action was brought by appellant to recover liquidated damages for the breach of a contract. A demurrer for want of facts was sustained to each paragraph of the complaint, and a judgment followed that appellant take nothing by his suit, and pay the cost. The assignment of errors calls in question the action of the court in sustaining said demurrer. It is objected by counsel for appellee that appellant has not complied with rule 22 of this court (68 N. E. viii) in the preparation of his brief in this: “That it is confused and indefinite with its several parts so intermingled with irrelevant matters and statements” as not to be understood. While it may be true that appellant has not prepared his brief in all respects as required by the rule mentioned, yet the brief contains enough to advise each of the judges of the questions which are presented for determination. It is manifest that appellant has made a good faith effort to comply with, and has substantially complied with, our rules in the preparation of his brief. This is sufficient. Stamets v. Mitchenor, 165 Ind. 672, 675, 75 N. E. 579;Swing v. Hill, 165 Ind. 411, 414, 75 N. E. 658;Low v. Dallas, 165 Ind. 392, 394, 75 N. E. 822.

The following is a copy of the writing sued upon:

“New Ross, Ind., Oct. 15, 1904. I hereby submit the following proposition: I will exchange my stock of dry goods, groceries, boots, and shoes, fixtures, etc., owned by me and with which I am doing business in the Odd Fellows Building at New Ross, Indiana, said stock to be free from liens of every kind and character, and to be invoiced at first cost price-said price to be obtained from bills for said goods from wholesale houses from which they were bought-for one hundred twenty (120) acres of land, more or less, owned by Daniel V. Howard of Dana, Indiana, and located about three (3) miles west of Winamac, Pulaski Co., Indiana, in sections seventeen (17) and eighteen (18) township thirty (30) north of range two (2) west; said land to be free from liens and incumbrances of every kind and character except a mortgage of two thousand ($2,000.00) dollars, and interest thereon from this date and possession to be given on or before March 1st, 1905, nothing reserved. I am to have all loose timber, tiling, posts, etc., now on said farm, but am not to have any interest in any of the crops or rent of said farm for the year 1904. I am to pay for said farm fifty dollars ($50.00) per acre in merchandise and fixtures. When above mentioned stock of merchandise and fixtures has been invoiced at cost, I am to deduct therefrom the sum of Two Hundred Forty-Six dollars ($246.00) and the remainder is the amount that I am to receive for said stock. I am to give possession as soon as stock of merchandise and fixtures has been invoiced and trade closed, which is to be as near October 20th as possible. Either party to this agreement hereby agrees to forfeit to the other five hundred dollars ($500.00) as liquidated damages if he fails to carry out his part of said agreement. Guy Adkins & Co.

“I hereby accept the foregoing proposition. Daniel V. Howard.”

Appellee first insists that, as the contract is within the statute of frauds, no damages can be recovered for the breach of the same because this 120 acres of land cannot be located from the description given. The rule recognized in this state is that “when the description given is consistent but incomplete and its completion does not require the contradiction nor alteration of that given, nor that a new description should be introduced, parol evidence may be received to complete this description and identify the property.” Tewksbury v. Howard, 138 Ind. 103, 105, 106, 37 N. E. 355, and cases cited; Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505;Torr v. Torr, 20 Ind. 118, 122, 124, and authorities cited; Guy v. Barnes, 29 Ind. 103; Wood on the Statute of Frauds, § 353; and 20 Cyc. pp. 270, 271. It is a well settled rule that parol evidence is admissible to apply a contract to its subject-matter. Wills v. Ross, 71 Ind. 13, 40 Am. Rep. 279, and cases cited. Contracts governed by the statute of frauds like other contracts are to be read “by the light of surrounding circumstances.” It follows therefore that parol evidence may be given of the situation and relation of the parties and the surrounding circumstances. Wills v. Ross, 77 Ind. 1, 12, 13, 40 Am. Rep. 279, and cases cited; Ransdel v. Moore, 153 Ind. 393, 400, 401, 53 N. E. 767, and authorities cited; Mace v. Jackson, 38 Ind. 162, 166, 167;Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505;Torr v. Torr, 20 Ind. 118, 122, 124;Guy v. Barnes, 29 Ind. 103;Tewksbury v. Howard, 138 Ind. 103, 105, 106, 37 N. E. 355;Johnson v. Buck, 35 N. J. Law, 344, 10 Am. Rep. 243;Bacon v. Leslie, 50 Kan. 494, 31 Pac. 1066, 34 Am. St. Rep. 134, 136, 137, and note page 141; Mead v. Parker, 115 Mass. 413, 15 Am. Rep. 110;Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671, and note page 675; Preble v. Abrahams, 88 Cal. 245, 26 Pac. 99, 22 Am. St. Rep. 301, and note page 306; Lente v. Clark, 22 Fla. 515, 1 South. 149;Williams v. Morris, 95 U. S. 444, 456, 24 L. Ed. 360, and cases cited; Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87;Moayon v. Moayon (Ky.) 72 S. W. 33, 60 L. R. A. 415, 423, 424, 102 Am. St. Rep. 303; Pomeroy on Cont. (2d Ed.) §§ 90, 152, 161, and notes; 1 Beach on Cont. § 581; Clark on Cont. p. 120; Wood on Stat. of Frauds, §§ 395, 396, 449, and notes; Browne on Stat. of Frauds (5th Ed.) § 385; 1 Reed on Stat. of Frauds, § 416; Tiffany on Sales, pp. 70, 71, and notes 173, 174, 673, 674; 17 Cyc. pp. 317, 318. In Warvelle on Vendors (2d Ed.) § 135, it is said that a description as “my house and lot” imports a particular house and lot, rendered certain by the description that it is the one that belongs to “me.” The following descriptions have been held sufficient: “My lot-on the plat in the town of South Bend, on the plat of said town, on the river bank” (Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505); the “Snow farm” (Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536); “H.'s place at S.” (Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87); the “Knapp home property” (Goodenow v. Curtis, 18 Mich. 298); an agreement to convey land described as “occupied” by the vendor or a third person (Angel v. Simpson, 85 Ala. 53, 3 South. 758;Towle v. Carmelo Land, etc., Co. 99 Cal. 397, 33 Pac. 1126;Docter v. Hellburg, 65 Wis. 415, 27 N. W. 176). In all such cases, parol evidence of the situation of the parties and the surrounding circumstances when the contract was made, was admitted so that the court might be placed in the position of the parties, and thus see with their eyes, and understand the force and application of the language used by them. It must be assumed looking at the terms of the writing that the parties had in view and understood that they were dealing as to a particular tract of “120 acres of land more...