Strebel v. Bligh

• Decision Date: 01 June 1915
• Docket Number: 22,463
• Citation: 109 N.E. 45,183 Ind. 537
• Parties: Strebel v. Bligh
• Court: Indiana Supreme Court

109 N.E. 45

183 Ind. 537

Strebel v. Bligh

No. 22,463

Supreme Court of Indiana

June 1, 1915

Rehearing Denied October 13, 1915.

From Cass Circuit Court; John S. Lairy, Judge.

Action by Michael F. Bligh against Valentine Strebel. From an interlocutory order appointing a receiver, the defendant appeals.

Affirmed.

Rabb & Mahoney and G. E. Ross, for appellant.

Long Yarlott & Souder, for appellee.

Spencer C. J. Lairy, J., not participating.

OPINION

Spencer, C. J.

This is an appeal from an interlocutory order appointing a receiver in an action by appellee against appellant for specific performance of a certain contract for the sale of a retail liquor business. The complaint alleges, in substance, that on July 23, 1913, appellant was operating a retail liquor saloon in the city of Logansport, under a liquor license which would expire on May 9, 1914; that he owned the stock of goods and the fixtures connected with said business, and held a lease on the premises in which said business was conducted, which lease would expire on December 31, 1917, and which contained a provision for the renewal thereof at appellant's option for a period of five years longer; that on said July 23, 1913, appellant executed the following option contract in writing:

"This memorandum witnesseth: That Valentine Strebel, of Logansport, Indiana, first party, does hereby give and grant to Michael F. Bligh, of Logansport, Indiana, second party, for and in consideration of the sum of one ($ 1.00) dollar, the receipt of which is hereby acknowledged, the exclusive privilege and option to purchase the retail liquor business of first party now operated by him on Wall Street in the city of Logansport, together with all furniture, fixtures, stocks, lease, and license thereof, for and during a period of thirty days from this date. The price and value of said property and business under this option is to be determined as follows: Each of the parties hereto shall select a competent appraiser, and said two appraisers shall select a third, who shall proceed to determine the fair value of said property. Any price agreed upon by a majority or all of said appraisers to be accepted as final by both parties hereto as the basis of said purchase and sale, if this option is accepted by second party within said time. It is understood and agreed that the only property to be appraised is the furniture, fixtures, stock and license, and that said license is to be appraised at the face value of the unexpired term thereof, and that the lease of the room occupied by said first party with said business is also to be appraised at a reasonable sum under this option. Said appraisement and valuation shall be made within thirty days, and each party hereto agree to name their respective appraiser within ten days from this date. This option is not transferable by second party except with the consent of first party. In case of the acceptance of this option by second party within said thirty day period, first party agrees to surrender and deliver full and complete possession of all of said property to second party immediately upon payment of the established value thereof as hereinbefore set out in cash or its equivalent to the satisfaction of first party. Witness our hands to duplicate copies hereof this 23d day of July, 1913. Valentine Strebel. Michael F. Bligh."

It is further averred that concurrently with the execution of said option appellant orally agreed that if appellee accepted said option appellant would immediately turn over to appellee the possession of said property and business and give him the control thereof and appoint appellee as appellant's agent to conduct said business until proper legal steps could be taken to secure a complete transfer of the license to conduct the same, and would pay appellee the net proceeds of said business during said time; that pursuant to the terms of said option each of the parties to said contract selected appraisers to value said property, and they in accordance with the provisions of the contract appointed a third appraiser, and that said appraisers proceeded to and did value all of said property referred to in said option and that thereafter appellee duly notified the appellant in writing of his acceptance of the terms of said option and made a tender to appellant of the full appraised value of said property and demanded of him the possession thereof. Further averments of the pleading show appellant's refusal to comply with the terms of said option contract and his continued operation of said saloon business as his own, all to appellee's injury through loss of profits rightfully belonging to him and...