Robinson v. Horner

• Decision Date: 28 June 1911
• Docket Number: 21,904
• Parties: Robinson v. Horner
• Court: Indiana Supreme Court

95 N.E. 561

176 Ind. 226

Robinson v. Horner

No. 21,904

Supreme Court of Indiana

June 28, 1911

From Superior Court of Tippecanoe County; I. E. Schoonover Special Judge.

Suit by Alfred C. Robinson against Cornelius M. Horner. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.

Reversed.

Robert C. Pollard, Charles R. Pollard and C. E. Thompson, for appellant.

Edwin P. Hammond, William V. Stuart and Dan W. Simms, for appellee.

Jordan C. J. Myers, J., did not participate in this decision.

OPINION

Jordan, C. J.

This action was commenced by appellant against appellee in the White Circuit Court upon a complaint in three paragraphs. The venue was changed to the Superior Court of Tippecanoe County. The plaintiff withdrew the first paragraph of his complaint. A demurrer for want of facts was sustained to each of the remaining two paragraphs. By leave of court the plaintiff filed what is termed a second amended third paragraph of complaint. A demurrer for want of facts was also sustained to this paragraph. Thereupon appellant refused to plead further, and elected to stand upon the second paragraph and the second amended third paragraph of his complaint. Judgment was rendered against him on demurrer. From this judgment he appeals, and assigns as errors the separate rulings of the court in sustaining the demurrer to the second paragraph of the complaint, and in sustaining the demurrer to the second amended third paragraph of complaint.

By the second paragraph of the complaint the plaintiff alleged that he and the defendant, on August 7, 1895, entered into a written agreement for the purchase of a certain tract of land in Jasper county, Indiana; that by the terms of said agreement plaintiff and defendant were each to pay a certain part of the purchase money of said real estate, and the title of said land was to be taken in the name of defendant; that the latter was to sell said land, and pay to plaintiff the amount of the purchase money that he had invested in the land, and also pay to him half the profits arising out of the sale of the land. A copy of the written agreement upon which the complaint is based was filed with the complaint and made a part thereof, and is as follows:

"Memorandum of agreement, entered into this 7th day of August, 1895, between Cornelius M. Horner, party of the first part, and Alfred C. Robinson, party of the second part, both of the town of Monon, White county, Indiana, witnesseth: That the parties hereto have this day entered into a partnership limited to ninety days, for the purchase of the following described real estate, to wit: [here the real estate is described and set out, being a total of 570 acres situated in Jasper county, Indiana] which is this day purchased from the heirs at law of Zachariah Miller through William M. Miller, one of the heirs, and from William M. Miller, attorney in fact for the other six Miller heirs, $ 500 of the consideration has been paid by said party of the second part, and $ 8,620 has been and is to be paid by said party of the first part, and the title to said land has been placed in said party of the first part, Cornelius M. Horner. And it is agreed, first, that said party of the first part is to take charge of said farm, and is to receive and collect all of the rents for the crops growing on said farm, during the cropping season of 1895, that is, said rents and profits are to be collected by said party of the second part, and turned over to said party of the first part as rapidly as collected, and he is to keep and retain possession of said proceeds until the sale of said lands, providing they are sold within ninety days from this date, and when said lands are sold, if sold within ninety days, then the money arising from the rents and profits, and the sale of said land is to be divided as follows: Said party of the first part is to be paid the amount he has in said land, $ 8,620 if he has paid out said amount (there being a small claim against said land for ditch assessments, amounting to $ 39.92 which it may not be practicable for these parties to pay), and said party of the second part will be entitled to receive his $ 500 that he has in said land, and the balance of the money received for the land over and above the amount, put in by said parties hereto, is to be equally divided and shall be regarded as profits, that is, all the money received for said land over and above $ 9,120, and all the money collected for rents shall be regarded as profits in this enterprise, and shall be equally divided between the parties to this contract, but in the event that said land is not sold within ninety days during the existence of this contract, then the said party of the first part is to have everything, and the said party of the second part is to forfeit his $ 500 that he has now invested in this land. It is further agreed and understood between the parties to this contract, that the taxes of 1895, which are a lien on said land, are to be paid by the party of the second part, in the event that they cannot be shoved off onto the party to whom said land is to be sold, if sold within ninety days, otherwise said party of the second part is to pay said taxes at any time required by the statute without any penalty or interest attaching. In witness whereof, the parties hereto have this day signed their names to this contract in duplicate. * * *

C. M. Horner,

A. C. Robinson."

August 7, 1895.

The paragraph further alleges that in pursuance of said agreement the land was purchased on said date and the deed was taken in the name of said Cornelius M. Horner; that plaintiff paid $ 500 of the consideration and defendant paid $ 8,620, and plaintiff and defendant were put in possession of said land. It is further alleged that after the making of said written contract and the purchase of the land, and before the expiration of the ninety days as stipulated in said contract, by reason of the facts that the land was run down and the fences and buildings thereon were in such a condition as not to make said land merchantable property, and that it could not be put into a merchantable condition within a period of ninety days, defendant and plaintiff orally agreed that the time limit of ninety days should be extended, and that the price at which it was agreed said land should be sold should be changed from $ 20 an acre to $ 25 an acre, and that plaintiff and defendant should continue as partners under said written agreement until such time as the land could be placed in repair and made merchantable property, and that the land should be held until $ 25 an acre could be obtained therefor; that in consideration thereof defendant Horner agreed to waive his right to forfeit the $ 500, as provided by the written agreement, in the event the land was not sold within the period of ninety days, as stipulated under the written agreement; that plaintiff took possession of the land as agent for both; that the first year he collected the rents and accounted therefor to Horner; that after the first year Horner took possession of the land and collected the rents, each party endeavoring to sell the land, until about September 1, 1899, at which time defendant sold the land for $ 21,375, and received the money, but refused to pay to plaintiff half the profits thereof and the consideration due; that plaintiff has demanded payment, and defendant has refused to make it; that half the profits of said sale and the $ 500 paid by plaintiff, amounting to $ 7,000, are due to him, with interest thereon from September 1, 1899.

It is further alleged that defendant has received from the rents and profits of said land $ 1,000, half of which sum belongs to plaintiff. Wherefore, it is alleged that there is due to the plaintiff the sum of $ 7,500, with interest thereon from September 1, 1899, in all the sum of $ 10,000, all of which is due and unpaid, and for which the plaintiff demands judgment for the sum of $ 10,000 and for all other proper relief.

In the second amended third paragraph of the complaint it is alleged that on August 7, 1895, plaintiff and defendant entered into a written agreement of a limited partnership for the purpose...