Johann Realty Corp. v. Kirkpatrick
| Decision Date | 28 March 1934 |
| Docket Number | No. 14218.,14218. |
| Citation | 99 Ind.App. 70,189 N.E. 843 |
| Parties | JOHANN REALTY CORPORATION v. KIRKPATRICK et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Vanderburgh Circuit Court; Chas. P. Bock, Judge.
Action by Rose M. Kirkpatrick, administratrix, and others, against the Johann Realty Corporation and others. From a judgment against the named defendant, it appeals.
Affirmed.
Superseding opinion in 177 N. E. 907.
Thomas W. Lindsey and E. M. Lindsey, both of Evansville, for appellant.
Funkhouser & Funkhouser, Frank C. Gore, and Ben J. Biederwolf, all of Evansville, for appellee.
The facts essential to a decision of this case as they appear in the record are as follows: On February 7, 1927, the appellant, and the appellee Rose M. Kirkpatrick and her husband, John Kirkpatrick, then in life, entered into a written contract, by the terms of which appellant agreed to sell, and the Kirkpatricks agreed to buy, a certain vacant lot in the city of Evansville for the agreed price of $1,774.51. This consideration was to be paid by the Kirkpatricks in printing, for the use and benefit of the Evansville Planing Mill Company, and the Johann Manufacturing Company, to be performed from time to time as demanded, until the amount thereof was equal to the sum of $1,774.51. The Kirkpatricks were also to pay certain taxes, sewer assessments, and other items of expense, if, and when made. Upon the payment of the consideration in the manner above stated and the payment of taxes and assessments pursuant to the terms of the contract, appellant was to execute and deliver to the Kirkpatricks a warranty deed for the lot. John Kirkpatrick died on December 17, 1927, leaving the contract in process of performance. Rose M. Kirkpatrick qualified as administratrix of his estate. At the time of his death there had been paid on the consideration of the contract, in printing, the sum of $1,072.93. After the death of John Kirkpatrick, printing services were rendered by his estate and applied upon said contract upon dates and in amounts as follows: March 31, 1928, $317.50; May 16, 1928, $308; August 21, 1928, $76.08. The total amount of the services so rendered being $1,774.51.
It was stipulated between the parties that the purchase price for the lot had been fully paid pursuant to the terms of the contract. Also, that after the execution of the contract and before the bringing of this action, the appellant conveyed the title to the real estate in question to parties other than Rose M. Kirkpatrick or her husband, John Kirkpatrick. The evidence, which is not in conflict, shows that the conveyance was made April 23, 1928. It will be observed that the last two payments upon the contract were made after appellant had conveyed the lot to third parties. Whether, at the time those two payments were made, Rose M. Kirkpatrick in her individual capacity or as administratrix was aware of this conveyance, is a disputed fact.
While we do not regard it as material to a determination of this case, it appears from the record that during the year 1927, a residence had been erected upon the lot by the Evansville Planing Mill Company. It was not completed for occupancy until after the death of John Kirkpatrick. Whether the appellee Rose M. Kirkpatrick refused to accept the house from appellant, or whether appellant offered to deliver and turn it over to her after completion, are facts upon which the evidence is in conflict.
Appellant never tendered either of the Kirkpatricks a deed for the property, nor did it after conveying the house and lot to third parties tender to appellees the purchase price received in printing, to reimburse them for the payments made upon the consideration for the lot, but retained the value of the services rendered as heretofore set out.
On December 3, 1928, appellees filed their complaint against appellant and the Evansville Planing Mill Company for damages suffered for breach of the contract for sale and purchase of the lot, alleging execution of the contract, payment of the purchase price of the lot in full, transfer of the lot by appellant to third parties so that appellant could no longer carry out said contract, that the lot was worth $2,500, and asking for judgment in that amount. A demurrer was filed to this complaint, which was sustained as to the Evansville Planing Mill Company, and overruled as to appellant. Appellant then filed an answer in two paragraphs, the first was a general denial, the second alleging the execution of the contract for the sale and purchase of the lot; that the Kirkpatricks thereafter, without the knowledge and consent of appellant, entered into a contract with the Evansville Planing Mill Company for the erection of a house upon the lot, the death of John Kirkpatrick, the completion of the house thereafter; that said house had not been paid for; that the appellee Rose M. Kirkpatrick refused to carry out plans that had been agreed upon previous to her husband's death to finance said house, and refused to further carry out the terms and conditions of said contracts for the purchase of the lot or payment of the house; that with the knowledge and consent and upon request of appellee Rose M. Kirkpatrick the house was sold by appellant and its related companies to the third parties; the money received therefrom to be applied in payment of the amount owing to the Evansville Planing Mill Company, other enumerated expenses, and after their satisfaction any balance should be paid to appellee to apply on the purchase price of the lot. There was no reply filed to this paragraph of answer. The cause was tried by the court without a jury, finding and judgment was in favor of the appellees. Motion for a new trial was overruled, and appellant appeals to this court assigning as error: (1) That the court erred in overruling appellant's demurrer to the complaint, and (2) in overruling appellant's motion for a new...
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