Shirk v. Lingeman

• Decision Date: 05 March 1901
• Docket Number: 3,355
• Parties: SHIRK, EXECUTOR, v. LINGEMAN
• Court: Indiana Appellate Court

59 N.E. 941

26 Ind.App. 630

SHIRK, EXECUTOR, v. LINGEMAN

No. 3,355

Court of Appeals of Indiana

March 5, 1901

Rehearing denied May 10, 1901.

From the Kosciusko Circuit Court.

Affirmed.

W. B Mitchell, N. N. Antrim, W. B. McClintic, L. R. Royse, B Shane and J. B. Jones, for appellant.

R. J. Loveland, H. P. Loveland, W. G. Sayre, J. W. Cook and J. D. Widaman, for appellee.

OPINION

ROBINSON, J.

Appellee filed a claim against the estate of appellant's decedent for damages for the breach of a contract for the exchange of lands. Appellant answered in denial. Trial by jury, verdict in appellee's favor, and over a motion for a new trial judgment was rendered on the verdict for $ 19,304.10. The errors assigned question the sufficiency of the complaint or claim, and the denial of a new trial. Each of the four paragraphs of appellee's claim is based upon the following contracts: "In this contract, E. H. Shirk is to deed John Lingeman, or order, 2,560 acres of land in Craighead county, Arkansas, or 3,840 acres in Poinsett county, he to select, taking the land in a body as nearly as he can, or, if he prefers, he may have land in the island, Clayton county, and allow me the difference in value between that and the Craighead county. The land to be selected out of any I may have in either county, when he comes down. Should he select in the island, T. B. Mills is to decide the difference in value. I am within ninety days to pay him $ 5,000. In consideration of the above, he, within three days, deeds and mails to me the deed for 226 acres he owns joining the town of Brownsburg, Hendricks county, Indiana, deed to be warranty, subject to $ 5,000 in mortgage on said property. He is also to assign to me a judgment on foreclosure for about $ 285, and assign to me a note of $ 176.50, and both on Charles Botmer and wife. Money to be paid on delivering of possession of property. Should he want the money sooner, or part of it, I will pay it. E. H. Shirk, John Lingeman."

"Peru, Indiana, December 4, 1874. The price the said Shirk pays the said Lingeman for his 226 acre farm is $ 27,000, and the price the said Lingeman takes the Arkansas land at is $ 17,000. E. H. Shirk, John Lingeman."

The supplemental contract is in these words: "In this contract, referring to a contract made December 4, 1874, in which E. H. Shirk was to deed John Lingeman 2,560 acres of land in Craighead county, or 3,840 acres in Poinsett county, or an equivalent in value in Clayton county, township 20, range 4 east, Clayton county, Arkansas, the amount to be decided he would be entitled to in Clayton county by T. B. Mills. Lingeman now elects to take 1,703 acres in Poinsett county, township 12, range 5 east, and the residue in township 20, range 4 east, Clayton county, Arkansas. The number of acres he is entitled to to be decided by T. B. Mills. Deed to be made subject to all taxes accruing since December, 1875. Selection to be made within three months. This instrument has reference to that part of original contract made December, 1874, which refers to the Arkansas lands only, and the note of Botmer and wife, which I release him as personal indorser; amount of note $ 176.50. E. H. Shirk, John Lingeman. December 17, 1875."

Upon the former appeal the contract was construed to be a contract for the exchange of lands with certain prices affixed to each, the difference to be paid in money. The two paragraphs of complaint on that appeal were held sufficient. Lingeman v. Shirk, 15 Ind.App. 432, 43 N.E. 33. On reversal these two paragraphs were amended but the same cause of action is stated in the amended paragraphs that was in the original paragraphs. No change was made in the issues for trial. The ruling on the former appeal as to the first and second paragraphs is the law of the case on this appeal. An amendment which does not substantially change the character of the pleading does not take the case out of the rule. City of Logansport v. Humphrey, 106 Ind. 146, 6 N.E. 337; Nickless v. Pearson, 126 Ind. 477, 26 N.E. 478; Poulson v. Simmons, 126 Ind. 227, 26 N.E. 152; Continental Ins. Co. v. Houser, 111 Ind. 266, 12 N.E. 479; Johnson v. Hosford, 110 Ind. 572, 10 N.E. 407; Elkhart, etc., R. Co. v. Waldorf, 17 Ind.App. 29, 46 N.E. 88; State, ex rel. v. Christian, 18 Ind.App. 11, 47 N.E. 395.

In Elliott's App. Proc. § 578, the rule is thus stated: "It is a firmly settled principle that the decisions of the appellate tribunal constitute the law of the case upon all the points in judgment, no matter at what stage of the proceedings they arise, or in what mode they are presented. This rule is not one springing from the doctrine of stare decisis, but it is one founded upon the same principle on which rests the doctrine of res adjudicata. Questions before the court for decision, and by the court decided as essential to a final judgment, are conclusively and finally adjudicated. The law as declared can not be changed upon a second or subsequent appeal." Hatfield v. Cummings, 152 Ind. 537, 53 N.E. 761; Brunson v. Henry, 152 Ind. 310, 52 N.E. 407.

The only error argued on the former appeal was the sufficiency of an answer of the six years' statute of limitations, and the court stated that this plea was sustainable only upon the theory either that the complaint was bad or that the contract set up by the complaint was a parol contract.

Each paragraph of the complaint now, as on the former appeal, is based on the written contract. This contract was construed on the former appeal and by that construction we are concluded. The construction thus given must determine the theory upon which recovery is sought. That theory, as we construe each paragraph of the complaint, is for a recovery of damages for the breach of a contract for the exchange of lands. It is unnecessary to repeat what was said in the former opinion as to the duty of appellee to select the land he wanted and the effect of the failure of Mills to act as required in the contract.

By the contract Mills was to decide the difference in value should island land be selected, and when it was agreed that the residue should be in Clayton county, Mills was to decide the number of acres. The first paragraph avers that Mills never did so decide, nor did Shirk ever convey any of the island land, although frequently requested to have the difference in value decided by Mills, and the second paragraph avers that Mills was Shirk's agent, having general management and control of his Arkansas lands.

The referee, who was to decide the difference in value should appellee select island land, and who was to decide the number of acres appellee should receive, was agreed upon when the contract was made. It is true Mills was to act for both parties, but when appellee had parted with his property and had made selection of the lands he would take in exchange, and had notified Shirk and Mills of such selection, it then became the duty of Shirk through Mills to determine the relative value of the lands in the two counties, and the number of acres, and the failure or refusal of Mills to act was a breach of the contract by Shirk. Appellee had no authority under the contract to select another referee. The referee was named in the contract. When appellee had done what the contract required he should do, he had done all that was required of him in consummation of the agreement for reference contained in the contract. It then became the duty of Mills to act, and when he failed or refused the agreement of Shirk was violated. We do not understand that a rule different from what we have indicated was declared in the case of Coles v. Peck, 96 Ind. 333, 49 Am. Rep. 161, cited by counsel. In that case each party was to select an arbitrator under certain contingencies. Coles named two arbitrators, one of whom Peck should have selected, but neglected to do so. The two so chosen fixed a valuation which Coles offered to pay, and demanded a deed. The effect of the holding in that case is, not that Coles might select two arbitrators and thus bind Peck as to the valuation so fixed by them, but that the acts of Coles showed that he had done all he reasonably could do to consummate the agreement for reference, and for that reason had presented a good prima facie case for equitable relief. See Lingeman v. Shirk, 15 Ind.App. 432, 43 N.E. 33, and cases there cited.

The third paragraph sets out the same contract, avers ownership of the Hendricks county farm, and its value as $ 27,000, that decedent, Shirk, sought out appellee with the view of purchasing or otherwise becoming the owner of appellee's farm, and to that end represented that he owned in fee 2,560 acres of land in Craighead county, and 3,840 acres in Poinsett county, Arkansas, either of which was of the value of $ 17,000, that he also owned in fee lands in Black river island in Clayton county, Arkansas, of like value; that thereupon the contract was made for the sale by appellee of his farm to Shirk for $ 27,000 and to pay for the same Shirk assumed a $ 5,000 mortgage on the farm, and was to pay appellee within ninety days $ 5,000 in cash, and to convey to appellee by warranty deed either 2,560 acres of Craighead county land or 3,840 acres of Poinsett county land, or $ 17,000 worth of land in Clayton county, the price per acre to be fixed by T. B. Mills, the lands in Arkansas to be selected by appellee; that after the contract was written and signed it was discovered that the price of appellee's land and the Arkansas land had been inadvertently omitted, whereupon, and before the contract was delivered, the clause was added and made part thereof; that appellee assigned to Shirk the judgment of foreclosure and promissory note mentioned in the contract. It is further averred that appellee "did do and perform all...