Straus v. Yeager
| Decision Date | 02 February 1911 |
| Docket Number | 7,144 |
| Citation | 93 N.E. 877,48 Ind.App. 448 |
| Parties | STRAUS ET AL. v. YEAGER |
| Court | Indiana Appellate Court |
Rehearing denied June 1, 1911. Transfer denied October 11 1911.
From Benton Circuit Court; J. T. Saunderson, Judge.
Suit by Simon J. Straus and others against Edwin S. Yeager. From a judgment for defendant, plaintiffs appeal.
Reversed.
Charles M. Snyder and Odell Oldfather, for appellants.
Frazer & Isham, for appellee.
This is an appeal from a judgment of the Benton Circuit Court, sustaining a demurrer to a complaint in three paragraphs.
The errors assigned and argued by counsel for appellants are the sustaining of appellee's demurrer to appellants' amended first and "third and further" paragraphs of complaint.
In the amended first paragraph of complaint it is alleged, in substance, that plaintiffs were partners doing business under the firm name and style of Straus Bros. & Co.; that on October 31, 1906, plaintiffs entered into a certain contract in writing with defendant, which contract was filed as an exhibit and made a part of the complaint; that by the terms of said contract defendant agreed to pay to plaintiffs on November 13, 1906, the sum of $ 9,000, which was due and unpaid; that by the mutual mistake of the parties to said contract, and of the scrivener who wrote it, it was dated "November 31, 1906," when, in truth and in fact, it was executed on October 31, 1906; that on November 13, 1906, and thereafter, plaintiffs were ready and willing to perform all the conditions of said contract to be by them performed, and offered to perform all the conditions that had accrued up to that date, and on that date demanded of appellee the performance of each of the conditions on his part to be performed, that had accrued up to that date; that defendant refused to perform the conditions on his part to be performed, and prevented plaintiffs from performing the conditions to be by them performed. On this paragraph the plaintiffs pray judgment for $ 10,000, and all proper relief.
Plaintiffs' "third and further paragraph of complaint" alleges the facts stated in said amended first paragraph of complaint, and, in addition thereto, states that by the terms of said contract, defendant sold and plaintiffs bought a stock of goods owned by defendant, and located at Earl Park, Indiana, which stock was to be invoiced at actual cost of the goods, except that those damaged, unsalable, or out of style, were to be taken at their actual value; that the possession of said stock was to be delivered to plaintiffs on November 13, 1906, and inventory was to be made of the stock on that day or the day following; that, according to the intention of the parties executing said contract, the amount of the value of said stock of goods, when ascertained, was to be applied on the debt of $ 9,000, to be paid by defendant to plaintiffs on November 13, 1906; that on November 13, 1906, plaintiffs demanded of defendant possession of said stock of goods at the place in Earl Park, Indiana, where the goods were situated, and then and there offered to proceed with the inventory thereof, and demanded of defendant the performance of his contract, and offered to perform all the conditions of said contract by plaintiffs to be performed, which had accrued to that date; that defendant refused to perform any of the conditions of said contract on his part to be performed, and then and there repudiated said contract, denied the execution thereof, refused to deliver the stock of goods to plaintiffs, or to proceed with the inventory, or to permit plaintiffs so to do, and also refused to pay said sum of $ 9,000, or any part thereof, and ordered plaintiffs from the premises; that plaintiffs were ready, willing and able to do and perform all the conditions of said contract that had accrued to the date of the commencement of this suit, which they were to perform, and have actually performed all such conditions, except those that defendant prevented them from performing, and stand ready to do and perform each condition of the contract on their part thereafter to be performed, in accordance with the provision thereof. This paragraph of complaint also avers the mutual mistake as to the date of the contract, and prays that it be reformed and made to bear the date of October 31, 1906, and demands judgment in the sum of $ 10,000. The original suit was filed on November 14, 1906, and the paragraphs of complaint now under consideration were filed on October 1, 1907. The demurrer challenges the sufficiency of the facts alleged, and also the jurisdiction of the court.
The contract, filed as exhibit A, shows, in substance, that the first parties, appellants, sold to the second party, appellee, for the sum of $ 29,850, certain real estate in Iroquois county, Illinois, which real estate the first parties agreed to convey, or cause to be conveyed, to the second party by deed of general warranty, free from all encumbrances, except such as were specified in the contract. The first parties agreed to furnish an abstract showing a merchantable title to the real estate, and fixed the time for the examination of said title. The purchase price was to be paid as follows: $ 50 in cash, "$ 9,000 to be paid in cash to first parties on November 13, 1906," $ 1,000 to be paid in cash on March 1, 1907, and the balance to be secured by mortgage on the real estate, and evidenced by notes bearing date of March 1, 1907. The contract contains the following:
"Said deed, abstract, deferred payments, notes, mortgage and insurance policy shall be delivered, and this contract shall be closed on or before March 1, 1907, at the office of Straus Bros. & Co., at Ligonier, Indiana."
It also provided that if the title was not merchantable at that time, the first parties should have sufficient time thereafter to correct all such defects, either by suit to quiet title, or otherwise, but that the date for closing the deal should not be delayed beyond March 1, 1907, on account of defects in the title, and provided that in case defects were found, a bond should be executed to indemnify the second party against any loss or damage on account thereof. The contract contains the following provision:
The contract further provides:
"Said stock to be turned over to Straus Bros. & Co. on November 13, 1906, and inventory to be made, starting on the 13th of November, or the 14th."
And it also states that each party shall select an appraiser.
The contention of appellee, that the court did not have jurisdiction, cannot be approved. This may have been a sound argument as applied to the amended second paragraph of complaint, which was for specific performance of the contract, and showed the purchase of real estate in Illinois, but this paragraph has been abandoned by appellants, and we have to consider only the amended first and "the third and further" paragraphs. These paragraphs seek a recovery of a part of the purchase money of the Illinois real estate upon the executory contract. Neither paragraph shows that appellants have title, nor that they have tendered title.
Appellee contends that a tender of a merchantable title is a condition precedent to the enforcement of the demand for payment of any part of the purchase money. If the contract is one that must be dealt with as an entirety, and its provisions are concurrent and dependent, then the weight of authority in this State supports such contention. Irwin v. Lee (1870), 34 Ind. 319; Goodwine v. Morey (1887), 111 Ind. 68, 12 N.E. 82; Melton v. Coffelt (1877), 59 Ind. 310; Migatz v. Stieglitz (1906), 166 Ind. 361, 77 N.E. 400; McCleary v. Chipman (1904), 32 Ind.App. 489, 68 N.E. 320.
Where the contract is divisible, and the obligations are independent, if the parties to the agreement have provided that an instalment of the purchase money shall be due before the time arrives for executing the deed, then suit may be maintained for the instalment due, without tendering a deed or showing title. Wile v. Rochester Improvement Co. (1900), 24 Ind.App. 422, 56 N.E. 928; Claypool v. German Fire Ins. Co. (1904), 32 Ind.App. 540, 70 N.E. 281; Keller v. Reynolds (1895), 12 Ind.App. 383, 387, 40 N.E. 76; Loud v. Pomona Land, etc., Co. (1894), 153 U.S. 564, 14 S.Ct. 928, 38 L.Ed. 822; Wooten v. Walters (1892), 110 N.C. 251, 14 S.E. 734; Leonard v. Bates (1822), 1 Blackf. 172, 173; Cunningham v. Gwinn (1837), 4 Blackf. 341, 1 Beach, Contracts § 731; 7 Am. and Eng. Ency. Law (2d ed.) 95; Irwin v. Lee, supra; Carver v. Fennimore (1856), 8 Ind. 135; Basler v. Nichols (1856), 8 Ind. 260; Harshman v. Paxson (1861), 16 Ind. 512; Keeler v. Clifford (1897), 165 Ill. 544, 46 N.E. 248.
A contract is not entire and indivisible because embraced...
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