Jackson v. Creek

• Decision Date: 14 March 1911
• Docket Number: No. 6,888.,6,888.
• Parties: JACKSON et al. v. CREEK.
• Court: Indiana Appellate Court

47 Ind.App. 541

94 N.E. 416

JACKSON et al.

v.CREEK.

No. 6,888.

Appellate Court of Indiana, Division No. 1.

March 14, 1911.

Appeal from Superior Court, Howard County; P. H. Elliott, Judge.

Action by Marion Creek against Jacomiah H. Jackson and others. Judgment for plaintiff. Defendants appeal. Reversed, and new trial ordered.W. C. Overton and Blacklidge, Wolf & Barnes, for appellants. Jos. C. Herron, for appellee.

FELT, J.

Suit for money had and received; judgment for appellee in the sum of $355.86 against appellants, from which this appeal is taken.

Errors assigned and argued are: (1) The overruling of appellants' motions for a new trial, and (2) for judgment on the answers to the interrogatories, notwithstanding the general verdict.

A new trial was asked on the ground that (1) the damages assessed are excessive; (2) the verdict of the jury is not sustained by sufficient evidence, and is contrary to law; (3) errors of the court in receiving and excluding certain testimony; and (4) in refusing certain instructions tendered and in giving other instructions.

The facts not controverted show that on April 11, 1906, the appellants, Jackson and Jackson, who were husband and wife, executed to appellee a title bond, in writing, for 80 acres of real estate in Blackford county, Ind., the provisions of which, material to this appeal, are as follows:

“Subject to all taxes falling due in the years 1906, 1907 and thereafter and to the assessments thereon for gravel road purposes *** and subject to a lease thereon until March 1, 1907, *** for the sum of $5,500.00, to be paid as follows: $400.00 cash, $600.00 on June 25, 1906, $850.00 on October 1, 1906, and $3,650 on January 1, 1907, with interest at six per cent. per annum from date, for which several amounts notes are given. The said Marion Creek is to have possession of the premises from March 1, 1907, and is to pay all taxes and assessments accruing thereon. *** Now if, on full and punctual payment of said notes, the said Jacomiah H. Jackson and Emma Jackson shall, upon reasonable request, execute to the said Marion Creek, his heirs or assigns, a good and sufficient general warranty deed, in fee simple, for said premises then this obligation shall be void, otherwise to remain in full force. Said Jackson and Jackson are to deliver their abstract of title to said land with said deed. If said Marion Creek pays said notes by January 1, 1907, he shall be entitled to the rents for 1906. Witness our hands and seals the day and year first above written. Jacomiah H. Jackson. Emma Jackson.

“I accept the above bond on the terms therein named. Marion Creek.”

That at the time the contract or bond was executed it was agreed that the contract, notes, and abstract of title should be placed in the Citizens' National Bank of Kokomo, Ind., to be held until all the notes were fully paid, at which time appellants Jackson and Jackson were to execute to appellee said warranty deed; that the contract, notes, and abstract were placed in the hands of W. C. Overton, who deposited them in accordance with the foregoing agreement.

In addition to the foregoing the jury, by their answers to the interrogatories, found that the title to the real estate from which the rents accrued remained in appellants Jackson and Jackson until February 4, 1907; that appellee was to have the rents if he paid for the land before March 1, 1907; that said written contract was the only agreement between said parties that appellee should have such rents; that appellant Landon, was the tenant upon said farm and paid the rent for 1906 in the sum of $355.86 to appellant Jacomiah H. Jackson, on February 9, 1907; that appellee did not, prior to January 2, 1907, notify either of the appellants that he would not accept the title to the real estate, but did make some objection thereto in the presence of Jacomiah H. Jackson; that appellee at no time notified appellants that he would not accept the title to the land; that on December 28, 1906, appellant Jacomiah H. Jackson met appellee and presented a warranty deed, duly executed, according to said contract, which appellee refused to accept; that said Jacomiah H. Jackson, on the evening of that day, by letter, notified appellee that he stood upon the contract; that on said date appellee demanded of said Jacomiah H. Jackson an order on said Landon for the rents for 1906, and the same was refused; that on February 4, 1907, appellee demanded a reduction of $50 from the purchase price on account of alleged defects in the title, and said Jackson and Jackson agreed to a reduction of $25 to satisfy the claim of appellee as to such defects; that appellee refused to accept the deed formerly tendered him and demanded another deed that should show their new agreement, and promised to pay the balance of the purchase money under said agreement to Overton and Barnes, attorneys, to be paid to said Jackson, when he and his wife executed said deed; that no other agreement was entered into by the parties at that time; that the balance of the purchase money was accordingly paid to Overton and Barnes, who paid it to appellant Jacomiah H. Jackson, when the deed was executed and delivered, which deed was duly recorded; that on January 1, 1907, appellants Jackson and Jackson had been in open, continuous, notorious, and adverse possession of said real estate under a claim of title for more than 20 years; that no demand was made by appellee upon appellant Emma Jackson for said rents and profits for the year 1906. In addition to the facts shown by the answers to the interrogatories there was some testimony tending to show that appellee, before January 1, 1907, made objection to the title on account of an alleged irregular deed and some old mortgages, but appellants contended that no such objection was made until late in January, 1907.

Appellee contends that on December 28, 1906, he offered to pay all the purchase money if appellant Jacomiah H. Jackson would fix the title. This was denied by appellants, who assert that the only excuse given at that time for not paying in full was that some persons had failed to pay appellee money due him, and he said he did not want to borrow and pay interest. The deed which was accepted and recorded was not introduced in evidence.

The principal question presented by this appeal is raised upon the admission and exclusion of evidence upon the motion for judgment on the interrogatories, and upon the instructions given and refused by the court. It is contended by the appellants that the facts show that there was a special, express contract in writing between the parties in relation to the rents in controversy, and that, where such contract is shown to exist, there can be no recovery upon an implied obligation in a suit for money had and received. Upon the other hand, it is contended by the appellee that the decisions of our courts fully warrant such recovery.

From the various cases cited we find some confusion and apparent conflict arising mainly from a failure to discriminate between the terms “special” and “express,” as applied to contracts, and in some instances the failure to distinguish between a question of pleading and one of evidence. The particular facts of each case must be known before its value as an authority can be determined. The title to the real estate in question remained in appellants Jackson and Jackson until the 4th day of February, 1907, and in the absence of a special contract to that effect appellee is not entitled to the rents for 1906, for the rents belong to the person who holds the title, in the absence of a contract providing otherwise. A special contract is one with peculiar provisions which, if omitted from the ordinary contract, the law will not supply. An express contract is one whose terms are stated either orally or in writing. An express contract may or may not be special, but a special contract is always express. Forester v. Forester, 10 Ind. App. 680, 38 N. E. 426;Pence v. Beckman, 11 Ind. App. 263, 39 N. E. 169, 54 Am. St. Rep. 505; vol. 7, Words and Phrases, p. 6572. The provisions on the subject of the rents amount to a special contract, and on the conditions stated in the contract appellee is entitled to the rents for 1906, but not otherwise. Kratemayer v. Brink, 17 Ind. 509;Deputy et al. v. Mooney, 97 Ind. 463;Goodwin v. Hudson, 60 Ind. 117.

The action for money had and received rests upon an implied promise, and may be maintained against the person who has received money, either from the plaintiff or from a third person, under circumstances which in equity and good conscience he should not retain. Harbaugh v. Tanner, 163 Ind. 574-581, 71 N. E. 145;Hunt v. Milligan, 57 Ind. 141-143;Ferguson v. Dunn's Adm'r, 28 Ind. 58;Field v. Brown et al., 146 Ind. 293-300, 45 N. E. 464;Lemans v. Wiley, 92 Ind. 436.

It is contended by appellants that while, under certain conditions, a party may maintain an action for money had and received, where there is an express contract, it cannot be done where the contract is special, for the reason that the suit for money had and received is upon an implied obligation, which does not arise where the contract is special; that proof of a special contract will not sustain the complaint which is based upon an implied agreement, and to support this contention appellants' counsel cite Forester v. Forester and Pence v. Beckman, supra, and Cranmer v. Graham, 1 Blackf. 406.

In Forester v. Forester, the court held that the agreement under investigation was an express, and not a special, contract, but said: “There is no conflict between the common-law rule and the decisions in this state when properly construed, although there are certain expressions in some of them that indicate to the contrary. The rule is that the pleader may declare on an express, non-special contract, and recover upon proof of an implied promise. But he cannot declare on a special contract and recover upon proof of an implied...