Lechner v. Strauss
| Decision Date | 17 May 1912 |
| Docket Number | 7,614 |
| Citation | 98 N.E. 444,50 Ind.App. 414 |
| Parties | LECHNER v. STRAUSS ET AL |
| Court | Indiana Appellate Court |
From Allen Circuit Court; Edward O'Rourke, Judge.
Action by George W. Lechner against Simon J. Strauss and another. From a judgment for defendants, the plaintiff appeals.
Reversed.
Eichhorn & Vaughn, for appellant.
Biggs Barrett & Morris, for appellees.
Appellant brought this action to recover a balance due on a contract for the sale of real estate and on a duebill. Appellees appeared specially and filed an answer in abatement in two paragraphs, a demurrer to each of which was filed and overruled. A denial to each paragraph of said plea closed the issues, and a trial by the court resulted in a judgment for appellees.
The ruling of the court on the demurrers to each of the paragraphs of the plea in abatement presents the only question to be determined by this court. The complaint sets out the contract for the sale of the real estate and the duebill. The substance of that part of the contract and duebill necessary to an understanding of the questions presented is as follows: Appellant in consideration of $ 1.00 and the covenants and agreements of appellees set out, grant unto appellees the option to purchase at any time on or before the 1st day of November, 1907, for the sum of $ 6,000.00 on the terms and conditions hereinafter set out, the real estate described in Allen County, Indiana. In case of acceptance of such option, appellant was to convey by deed of general warranty to Abe Ackerman, of said county (one of the appellees) or to such other grantee as appellees might direct, a merchantable title in fee simple to said premises free of all incumbrances except as stipulated; such deed to be executed and delivered by appellant within ten days after the acceptance of the option to Old National Bank of Fort Wayne, to be by it held in escrow until appellees performed their part of the contract, whereupon such custodian was to surrender it to appellees; appellant to procure and deliver to appellees at Commercial Bank, in said city of Fort Wayne an abstract of title to said premises showing title as aforesaid, all to the approval of appellees, the same to be submitted for examination within thirty days from appellees' acceptance, of the option contract, appellant to cause all defects therein to be corrected within sixty days thereafter, and if not corrected by that time, the appellees were authorized at their option to cause the same to be corrected, in which event appellant was to pay the expenses thereof. In consideration for which appellees agreed that should they avail themselves of this option, they would pay for said real estate said sum of $ 6,000 as follows: "$ 1,000 on or before the 1st day of November, 1907, * * * and the balance of $ 5,000 * * * on or before the 1st day of January, 1908, * * * at the office of said Strauss Brothers & Company, Fort Wayne," or at the office of said custodian at the option of appellees, providing that if appellant shall not have complied with his part of this contract, by said time, then appellees may at their option, withhold such payments until the same has been done. At the time of such final payments, appellant shall execute to the appellees an affidavit for further assurance as to title, in accordance with this contract. In the event of the default of appellant in the performance of this contract, the said custodian shall hold all of said purchase money that may thereafter be paid by appellees as indemnity, to secure the performance of this contract by appellant, until the same is complied with. Time is the essence of this contract and shall be so construed.
"DUEBILL.
Ligonier, Indiana, December 30th, 1907.
* * * There will be due from the undersigned Strauss Brothers & Company, to George W. Lechner, the sum of * * * ($ 5,000.00) * * *, as the balance of the purchase price for the real estate conveyed by Warranty Deed dated the 30th day of December, 1907, * * * pursuant to contract by and between said grantor and his then wife, who has since died, and the undersigned, dated the 16th day of March, 1907. Said sum is to become due and payable * * * on or after the first day of May, 1908, * * * and when the said grantors shall have delivered to the undersigned an abstract of title to said premises showing merchantable title thereto free of liens, all to the approval of the attorneys for the undersigned and all in accordance with the provision of said contract which is referred to herein and made a part hereof. The undersigned reserve the right to cause all of the conditions of this due bill to be complied with and they are hereby authorized to pay the abstractors and attorneys for their services and expenses incurred on account thereof whether contracted for by the said payee or by the undersigned. All disbursements as provided for herein which shall be made by the undersigned are to be deducted from the amount of this duebill. That portion of said sum, if any, in excess of Two Hundred ($ 200) dollars, shall bear interest at the rate of 5 per cent per annum from the first day of March, 1908, until the aforesaid conditions of this duebill are complied with, provided, however, that such interest shall cease in any event at the expiration of one year. The residue of said sum shall not bear any interest. * * *
By Simon J. Strauss, a member of said firm."
This duebill shows a number of indorsements of payments of various sums, the last of which bears date October 24, 1908, when $ 262.18 was paid thereon.
Appellant in his amended complaint avers that he had "fully performed and complied with the terms of said contract and duebill in the matters therein set forth; that he executed the deed of conveyance for said real estate to the defendants which deed was accepted by said defendants and that said defendants have since sold and conveyed said property * * * that there is due plaintiff under said contract and duebill the sum of $ 1,206.46."
The first paragraph of the plea in abatement, after averring that defendants appear specially to the amended complaint, alleges, in substance, that appellant ought not to maintain his action, because, he executed the "option contract," which is also filed as an exhibit with said plea; that pursuant to said option appellees purchased said real estate from appellant, and that he conveyed the same to Abe Ackerman; that (we quote) "on the duebill herein sued upon there is to be paid plaintiff * * * ($ 1,266.92) but defendants aver that said amount is not due nor payable nor was the same due or payable at the commencement of this action because they say, that in and by the terms of said contract plaintiff agreed to deliver defendants an abstract of title to the above real estate, compiled by competent and responsible abstractors, showing a merchantable title therein in plaintiff, free of all liens, such abstract to be approved by defendants' attorneys and defendants aver that plaintiff did not comply with his contract in this, that the same was not approved either by the defendants or their attorneys because as shown by the abstract delivered by plaintiff to defendants, " certain suits were filed against appellant, which, it is averred, affected the title to said real estate, viz., a suit by Thomas Greer, the administrator of appellant's grantor, against appellant for an amount alleged to be due on purchase-money notes given for said land, and to foreclose a vendor's lien thereon. The compromise and settlement of said suit is alleged, also the filing of other suits against appellant, all of which it is alleged were dismissed except one, and as to this, it is averred that judgment was rendered for appellant.
Then the following averments are given: ...
To continue reading
Request your trial