Oscar Wilkinson v. Oscar Kimmie
| Decision Date | 09 June 1913 |
| Docket Number | No. 273,273 |
| Citation | 229 U.S. 590,33 S.Ct. 879,57 L.Ed. 1342 |
| Parties | OSCAR WILKINSON and Thomas J. Kemp, Plffs. in Err., v. OSCAR A. M. McKIMMIE and Simon McKimmie |
| Court | U.S. Supreme Court |
Messrs. Charles Poe and Alfred D. Smith for plaintiffs in error.
Messrs. John Ridout and W. E. Ambrose for defendants in error.
By the judgment here under review the court of appeals affirmed a judgment in favor of the Messrs. McKimmie against Wilkinson and Kemp in an action upon a bond they had signed as sureties for one Horton. By an agreement in writing, the McKimmies agreed with Horton to convey to him four lots in block 9 of Todd and Brown's subdivision of Mount Pleasant and Pleasant Plains for $11,500, which he agreed to take and pay for as follows: To assume a mortgage of $3,000 and pay $1,000 on delivery of the deed; to reconvey to the Messrs. McKimmie two lots, each 16 feet 8 inches front on Brightwood avenue (part of the land above described), free and clear of encumbrances, and erect on each of these lots a two-story brick dwelling, according to approved plans and specifications, within eight months from the date of the agreement, for which construction and completion, clear of mechanics' liens or other encumbrances, Horton agreed to furnish a sufficient and satisfactory bond to the McKimmies; and for the balance of the purchase price, $500, Horton was to give two notes, secured by a second deed of trust upon two other lots in the tract, 'upon which he is to erect houses similar to those herein described.' The agreement expressly provided that 'the said houses contracted for to be constructed as aforesaid shall be delivered upon their completion to the parties of the first part [the Messrs. McKimmie] as their property in fee simple, and shall be free and clear of all encumbrances or liens.'
The bond in suit recited the agreement, and was conditioned for its faithful performance by Horton.
The opinion of the court of appeals (36 App. D. C. 336) sets forth the full history of the controversy and the course of the trial. We deem it necessary to mention only one of several matters that were discussed in argument before us, and that is, the contention that the plaintiffs in error were discharged from responsibility as sureties because of the fact that by arrangement made between the Messrs. McKimmie and Horton, instead of their conveying to him the two lots that were to be theirs in the outcome, and...
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...of the principal is not materially different from that first contemplated Stearns, (supra § 6.7). In Wilkinson v. McKimmie, 229 U.S. 590, 592-593, 33 S.Ct. 879, 880, 57 L.Ed. 1342 (1912) where an agreement provided for a conveyance of land and a conveyance back of a part of the land, and la......
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