McKenna v. Smith
| Decision Date | 12 January 1922 |
| Docket Number | 11,031 |
| Citation | 133 N.E. 510,77 Ind.App. 372 |
| Parties | MCKENNA v. SMITH ET AL |
| Court | Indiana Appellate Court |
From Lake Superior Court; Virgil S. Reiter, Judge.
Action by Barney McKenna against Harry M. Smith and others. From a judgment for defendants, the plaintiff appeals.
Affirmed.
T Joseph Sullivan, for appellant.
Roy E Green and L. D. Hall, for appellees.
Appellant instituted this action to obtain a decree of specific performance based on an alleged contract for the sale of real estate. Subsequently he filed a petition for injunctive relief, on which a restraining order was issued without notice. After notice had been given, issues were joined on said petition and a hearing was had thereon, resulting in a denial of a temporary injunction, and a dissolution of the restraining order theretofore issued. Appellant thereupon filed an amended complaint in three paragraphs, asking a decree of specific performance based on said alleged contract of sale. The first paragraph alleges, in substance, among other things, that on September 11, 1920, appellee Smith, was the owner of lots 22 and 23 of Lauritzen's subdivision of lot 6, otherwise known as No. 1204 Myrtle avenue in the city of Hammond, Indiana; that on said day said appellee sold said real estate to him for the sum of $ 3,300, and accepted from him $ 100 on the purchase price thereof; that said contract of sale was in writing and reads as follows:
"Whiting, Ind., Sept. 11, 1920.
Received of Barney McKenna one hundred dollars ($ 100.00), as part purchase price on property at 1204 Myrtle Ave., Whiting, Ind. Balance $ 3200.00.
Harry M. Smith, By H. E. Rowe, Agt."
That by mistake and inadvertence of the scrivener who wrote said contract, the word Whiting was used in both the date line and body thereof, instead of the word Hammond; that it was then and there the intention of the parties that said contract should evidence a sale of the above described real estate situated in Hammond, Indiana, to appellant, and that the same should be conveyed to him in pursuance thereof; that the part of Hammond in which the above described real estate is located adjoins the city of Whiting, and is two or three miles from the main portion of the former; that because of such fact, that portion of Hammond in which said real estate is located is commonly considered as being in Whiting; that the residents of said portion of Hammond receive their mail through the carriers from the post office at Whiting, to which it is addressed; that none of the appellees own any property at 1204 Myrtle avenue in Whiting, and in fact there is no avenue or street by that name in said city; that in common parlance among the residents of Whiting, and that part of Hammond in which said real estate is located, and by common consent and usage, the names Whiting and Hammond are used interchangeably; that both of the parties to said contract intended that it should describe the house and lot located at No. 1204 Myrtle avenue in said city of Hammond, and that thereby, appellee Smith, should sell, and appellant should purchase the same, but by their mutual mistake the name Whiting was inserted in said contract instead of the name Hammond. Said paragraph concludes with formal allegations as to performance, tender, and demand on the part of appellant, and as to a breach of said contract on the part of appellee Smith, and with a charge that the remaining appellees were claiming some interest in said real estate, which they were asked to assert. The prayer asked for a decree of specific performance of said contract.
The second paragraph of amended complaint contains substantially the same allegations as the first paragraph, except that it alleges that appellees Hosteller and Hosteller, instead of appellee Smith, were the owners of said real estate; that said owners appointed said Smith as their agent to sell the same for the sum of $ 3,300, and that said Smith, with the knowledge and consent of said owners and by their authority, appointed one H. E. Rowe, the tenant of said real estate, as his agent in making said sale. Said paragraph further alleges that appellees connived together and conspired to prevent and avoid the fulfillment of said contract, and thereby to defraud him of his rights in said real estate. The details of the alleged fraudulent acts of the several appellees are set out but we find it unnecessary to state them here. The prayer asks that specific performance of his said contract be decreed, together with other relief.
The third paragraph of amended complaint is based on a contract for the sale of the real estate described in both the first and second paragraphs, and is substantially the...
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