Sachs v. Blewett, No. 26341.

• Docket Nº: No. 26341.
• Citation: 206 Ind. 151, 185 N.E. 856
• Case Date: June 05, 1933
• Court: Supreme Court of Indiana

206 Ind. 151
185 N.E. 856

SACHS et al.
v.
BLEWETT.

No. 26341.

Supreme Court of Indiana.

June 5, 1933.

Appeal from Superior Court, Marion County; Wm. O. Dunlavy, Judge.

Action by Effie Blewett against Max Sachs and others. Judgment for plaintiff, and defendants appeal. Transferred from Appellate Court under Burns' Ann. St. 1926, § 1357, cl. 2.

Reversed, with instructions.

[185 N.E. 857]

Superseding opinion of Appellate Court in 175 N. E. 676.

Saul I. Rabb and Richard L. Ewbank, both of Indianapolis, for appellants.

Telford B. Orbison, of Indianapolis, for appellee.

FANSLER, Judge.

The appellee brought this action against the appellants by a complaint in two paragraphs, alleging in substance: That in June, 1928, the appellee was the owner of certain real estate in the city of Indianapolis. That she advertised said property for sale at auction. That it was announced before the sale that the successful bidder would be required to immediately make a deposit of 10 per cent. of the purchase price of the property as good-faith money and part payment on the property; the balance of the purchase price to be paid upon delivery of the proper conveyance and abstract of title. That when the bidding began one John Hauk made a bona fide bid of $12,100. That thereupon the defendants (appellants) bid $12,150. That Hauk then made a bona fide bid of $12,200, and that thereafter the defendants bid $12,225. That no other bids were made and that the auctioneer declared the property sold to the defendants for $12,225, the highest bid received. That plaintiff then demanded of the defendants a 10 per cent. deposit, and that defendants represented that they did not have the money with them with which to make the deposit, and that they did not have money in bank so that a check could be given. That plaintiff then informed them that a $500 deposit would be acceptable in lieu of a 10 per cent. deposit. That the defendants represented that they would pay her the $500 deposit at their place of business in the afternoon. That plaintiff relied upon said representations and believed them and consented to wait for the deposit money. That she went to their place several times and each time they made some excuse for not paying. That defendants finally told her they did not believe the property was worth the amount of the bid; that they would only pay $10,750. That defendants had attended said auction sale for the fraudulent purpose of “blocking the sale of said property,” and to make fraudulent bids therefor in order to prevent the sale to any honest bidder. That all of the bids made by the defendants were fraudulently made with the intention of cheating and defrauding the plaintiff and with no intention to comply therewith, and for the purpose of preventing the sale of the property. That the plaintiff and her agent, the auctioneer, were ignorant of the fact that the bids were false and fraudulent and believed them to be in good faith. That she was at all times ready to comply with the conditions of the sale as announced by the auctioneer. That John Hauk was a qualified bidder at said sale and was ready and willing to purchase the property at his bid of $12,200. That except for the fraudulent bid of the defendants he would have been declared the successful bidder and the property sold to him at that figure. That afterwards Hauk refused to purchase the property at the price offered, and that plaintiff made a diligent effort to sell the property for $12,200, and was finally forced to hold a second auction sale approximately three weeks after the first and that at said sale the property was sold for $10,350. By reason of said facts she claims damages for the difference between the amount of Hauk's bid at the first auction and the price at which the property sold and the expenses of the sale, interest, and attorney's fees. The second paragraph is practically identical with the first, except that it further alleges that the defendants conspired to cheat and defraud the appellee, believing that if they were able to prevent any honest bidder from purchasing the property and have themselves declared successful bidder, they would be able to obtain the property for a sum much less than their bid because of the fact that it was necessary for the appellee to sell immediately in order to prevent foreclosure.

There was a demurrer to the complaint as a whole for want of facts, challenging its sufficiency upon the ground that: “The complaint, stripped of its conclusions, does not state any facts at all. The alleged fraud and fraudulent intent is not set out. It is not shown that an agreement in writing, signed

[185 N.E. 858]

by the defendants, was entered into for the purchase of the said real estate. It is not shown that the defendants agreed, in writing, signed by them, to the terms of the said sale. It is not shown that any agreement or memorandum for the sale and purchase of the said real estate was ever signed by the defendants.” The overruling of this demurrer is assigned as error.

Stripped of its conclusions and descriptive adjectives, the complaint alleges that the appellants orally agreed to purchase the real estate, and that they intended to repudiate the agreement with the object of...