Lewis v. Lee, 10595.

• Decision Date: 30 March 1921
• Docket Number: No. 10595.,10595.
• Citation: 130 N.E. 443,75 Ind.App. 263
• Parties: LEWIS v. LEE et al.
• Court: Indiana Appellate Court

75 Ind.App. 263

130 N.E. 443

LEWIS

v.LEE et al.

No. 10595.

Appellate Court of Indiana, Division No. 1.

March 30, 1921.

Appeal from Circuit Court, Knox County; Thomas B. Coulter, Judge.

Suit by John W. Lee and others against Joseph B. Lewis. From a judgment in his favor for part of the relief demanded, defendant appeals. Modified and affirmed.

McCormick & Unger, of Vincennes, for appellant.

C. B. Kessinger and W. H. Hill, both of Vincennes, for appellees.

REMY, C. J.

Appellant loaned to appellee John W. Lee, hereinafter designated as appellee, the sum of $1,500, taking the latter's promissory note due in three years after date. To secure payment of the note, appellee at the time conveyed to appellant certain real estate in the city of Vincennes of the value of $3,500. By a contract contemporaneously executed appellant agreed to reconvey the real estate to appellee upon the payment of the note and interest. After the note had matured, appellee sought a settlement with appellant and to have appellant reconvey the real estate in accordance with the contract. At the time the settlement and reconveyance were requested, appellee was indebted to appellant for a balance of interest, and for certain sums of money advanced for taxes and municipal assessments; and appellant was indebted to appellee for certain rents which he had collected from a tenant of the property. In response to appellee's request, appellant refused to reconvey the real estate in accordance with the terms of the contract, asserting that appellee had breached the contract, and had thereby forfeited any claim he may have had to the property. Whereupon appellee commenced this suit for an accounting, and to compel a reconveyance of the real estate. Appellant answered in denial, and filed a cross-complaint in two paragraphs, the first to quiet title, and the second to have the deed declared a mortgage, and for a foreclosure. The finding of the court was in favor of appellee on his complaint, and against appellant on his cross-complaint. The real estate was ordered reconveyed, and a commissioner appointed for that purpose; but there was a money judgment for $1,926.05 in favor of appellant. Motions by appellant to modify the judgment, and for a new trial were overruled. The rulings of the court on these motions are the errors assigned.

[1] The record shows that appellee made no tender of the amount due appellant under the contract; and for that reason it is urged by appellant that the court erred in ordering a reconveyance. The undisputed evidence shows, however, that appellant, when a settlement and reconveyance were demanded, informed appellee that he would make no reconveyance unless appellee would pay him the sum of $2,000, which sum appellant at the time knew was in excess of the amount due. This act of appellant in refusing to convey the real estate, except upon a condition not required by the contract, amounted to a waiver of a tender by appellee, if any would have been required. Neal v. Finley, 136 Ky. 346, 124 S. W. 348; 26 R. C. L. 624. See, also, Ames v. Ames, 46 Ind. App. 597, 91 N. E. 509.

It is further contended by appellant that there was error on the part of the trial court in fixing the amount of the money judgment against appellee: (1) In making no allowance for attorney's fees; and (2) by a miscalculation of the mutual accounts of the parties.

[2] It...