Rich v. Fry, 24207.

• Decision Date: 11 June 1925
• Docket Number: No. 24207.,24207.
• Citation: 196 Ind. 303,148 N.E. 202
• Parties: RICH et al. v. FRY et al.
• Court: Indiana Supreme Court

196 Ind. 303

148 N.E. 202

RICH et al.

v.FRY et al.

No. 24207.

Supreme Court of Indiana.

June 11, 1925.

Appeal from Circuit Court, Starke County; Smith N. Stevens, Judge.

On petition for rehearing. Overruled.

*202For former opinion, see 146 N. E. 393.

EWBANK, J.

The agency of appellant Nelson for his codefendant, Rich, was established, not only by the testimony of appellee Fry, but by that of Nelson and Rich, as well. All three testified to interviews between Rich and Fry two months after the date fixed by the contract of sale for paying the purchase money, when the subject of consummating the purchase was under consideration, and Nelson “did the talking” for Rich.

The undisputed evidence was that Nelson was a real estate agent, and that in all the negotiations on behalf of Rich, as well as in making the original contract in his name, Nelson acted as the agent and representative of Rich. There was evidence that on March 1, 1921, the date named in the contract as the time for payment of the purchase money, an abstract of Fry's title and a warranty deed of conveyance for the land had been tendered to Nelson as such agent, and that, assuming to act as agent for Rich, he then stipulated in writing, in behalf of Rich, that in case this abstract should not comply with the conditions set out in the contract Fry should have a reasonable time to cure the defects in it; that at that time Rich was put in possession of the land; that in repeated interviews for months afterward Nelson, in the presence of Rich, and assuming to speak for him, continued to negotiate for further time in which to pay the purchase money, Nelson testifying that a month later, when Rich was present an offer was made to Fry “to pay $1,000 within 10 days and extend the time of the final settlement to the 1st of March, 1922,” and Rich testifying that an offer was made “to give them $1,000 and have an option until the 1st of March, 1922,” while Fry testified that, both Nelson and Rich being present, they wanted to extend the time for the consummation of the contract to the 1st of March, 1922, but would not meet the terms which he laid down for such an extension, but there was no evidence that the sufficiency of the abstract so furnished, or of the title as thereby shown, was ever challenged in any way.

A warranty deed in due form, signed and acknowledged by Fry and his wife, purporting to convey the land to Rich, subject to the mortgage for $3,000, was introduced in...