Rich v. Fry, No. 24207.

• Docket Nº: No. 24207.
• Citation: 146 N.E. 393, 196 Ind. 303
• Case Date: February 04, 1925
• Court: Supreme Court of Indiana

196 Ind. 303
146 N.E. 393

RICH et al.
v.
FRY et al.

No. 24207.^*

Supreme Court of Indiana.

Feb. 4, 1925.

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

Action by Andrew Fry and others against Jacob D. Rich and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

[146 N.E. 395]

Reidelbach Bros. and John M. Spangler, all of Winamac, for appellants.

George Burson, of Winamac, and Noel, Hickam & Boyd, of Indianapolis, for appellees.

EWBANK, J.

This was an action by appellee Fry and his wife to recover purchase money alleged to be due on a contract between Fry and appellant (defendant) Rich for the purchase of a farm, which the complaint averred had been fully performed on plaintiff's part by putting Rich in possession of the premises, and delivering to him abstracts showing that plaintiff had a good merchantable title, and executing and tendering deeds conveying the lands to him; also seeking to reform an alleged mistake in writing one word in the sale contract; and also seeking to recover on a promissory note payable to Fry and his wife bearing the signatures of appellants (defendants) Nelson and Badger, alleged to have been given in part payment of the purchase price for the farm, and to have been executed as part of the contract at the time it was signed, and to be referred to therein as given for that purpose. The jury returned a verdict against all three of the defendants for the amount due on the note, with interest and attorney fees, and also against Rich “on the contract in suit” for the remainder of the agreed price not covered by the note, with interest thereon. Assuming that the cause was of equitable cognizance, the court thereupon made a general finding for plaintiffs as against the makers of the note, Nelson and Badger, for the said principal, interest, and attorney fees, in the total amount of $1,190, without relief, and against Rich on his contract of purchase for the rest of the purchase money, with interest, in the amount of $12,720, and that plaintiff held a vendor's lien for the latter amount upon the lands sold; and it also found that the contract of purchase should be reformed as prayed. Judgment was rendered accordingly. The errors assigned challenge the overruling of appellant's several demurrers to the complaint, the overruling of their motion to require that the second paragraph of reply be made more specific, and of their motion for a new trial, and of each of certain motions addressed to the pleadings and to the judgment, respectively.

The complaint alleged, in substance, that the plaintiff Andrew Fry sold to the defendant Rich a certain described 80-acre tract of land for the agreed price of $13,000, clear of all incumbrances except a mortgage thereon of $3,000; that in reducing the agreement to writing the scrivener wrote into the description of the land that it was in “range one west,” whereas the agreement was for the sale of an identified tract in “range two west” that was otherwise properly described; that as so written the contract was signed by defendant Rich, and by the plaintiff Andrew Fry, who understood in its execution that it described the land actually sold; that it recited a covenant by Fry to convey said lands to defendant by a good and sufficient warranty deed, executed by himself and his wife, which should be delivered to defendant on or before March 1, 1921, and to furnish

[146 N.E. 396]

defendant a complete abstract of plaintiff's title to said premises, brought down to date, and certified by a competent abstractor, showing a merchantable title to said premises, free and clear of all incumbrances except the mortgage for $3,000; that possession should be delivered to defendant Rich on or before the 1st day of March, 1921, and that the deed should be delivered at the office of the Nelson Land Company, at Monticello; and that defendant Rich should pay to Fry “$16,000 in the manner following: $1,000 evidenced by a promissory note of even date, due March 1, 1921, bearing 6 per cent. interest, and the balance of $12,000 in cash on or before March 1, 1921,” and on receipt of the deed as therein provided. This contract was dated September 16, 1920, and was signed by Andrew Fry, and by “Jacob D. Rich by James Nelson.” The complaint alleged that it was executed by defendant Rich, by Nelson as his agent and attorney in fact, and its execution stands admitted on the record. The complaint further alleged that at the same time and as part of the same transaction, Nelson, acting for and on behalf of Rich, together with Badger, executed their promissory note for $1,000 payable to Fry and his wife on or before March 1, 1921, at the State Bank of Monticello, Ind., with interest at 6 per cent. and attorney fees, a copy of which was made an exhibit as part of the complaint, and that it was given as part of and to be credited upon the purchase price to be paid by Rich for said land; that on March 1, 1921, plaintiff Fry delivered to Nelson, as agent for Rich, an abstract showing that Fry had a good merchantable title to said land, and tendered to him a good and sufficient warranty deed, duly executed by himself and his wife, conveying to Rich a fee-simple title to said land, and at that time surrendered to Nelson, as agent for Rich, “the possession of said premises, and which he is at this time in full possession and enjoyment, and he now and here brings into court for the defendant Rich said deed for said lands.” It further alleged that the note was long past due and was wholly unpaid, that $100 was due thereon as an attorney fee, and that defendant Rich, though often requested to pay the remainder of the purchase money, had failed and refused to pay any part of it, and that there remained due and unpaid thereof $12,120, principal and interest. The prayer was for reformation of the contract by changing to “two” the word “one” mistakenly written into the description, for the recovery as against Rich of $12,120, and for the foreclosure of a vendor's lien for that amount upon the land sold, and the recovery as against all three of the defendants, without relief from appraisement laws, of the face of the note, with interest and attorney fees, “and for all other proper relief.”

[1][2][3][4][5] The allegation that on the date fixed by the contract for performance plaintiff put the purchaser's agent in possession of the lands, and that the purchaser was still in full possession and enjoyment of...