Thompson v. Fesler

• Decision Date: 22 April 1919
• Docket Number: No. 9799.,9799.
• Citation: 123 N.E. 188,74 Ind.App. 80
• Parties: THOMPSON et ux. v. FESLER et ux.
• Court: Indiana Appellate Court

74 Ind.App. 80

123 N.E. 188

THOMPSON et ux.

v.FESLER et ux.

No. 9799.

Appellate Court of Indiana.

April 22, 1919.

Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge.

Action by Joseph W. Thompson and wife against Leo K. Fesler and wife. From a judgment for defendants and a denial of a new trial, plaintiffs appeal. Affirmed.

S. D. Miller, F. C. Dailey, and W. H. Thompson, all of Indianapolis, for appellants.

Joseph W. Hutchinson and Emsley W. Johnson, both of Indianapolis, for appellees.

McMAHAN, J.

Appellants, Joseph W. Thompson and Georgiana H. Thompson, commenced this action against Leo K. Fesler and Flora B. Fesler, appellees, to recover a balance alleged to be due on a contract whereby appellants sold and appellee Leo K. Fesler agreed to buy certain real estate in Indianapolis, and known as lot 274, Morton place. The real estate was conveyed to appellees, who are husband and wife. The complaint seeks to have the amount charged as a lien upon the real estate, and alleges that, as payment of $400 of the purchase price of said real estate, appellee Leo K. Fesler agreed to transfer to appellants an equity of $400 in lot 230 in Osgood's Park addition to the city of Indianapolis, and that he never in fact had an equity of $400 in said lot, and appellants seek to recover the balance of $400 and interest due on the purchase price of the real estate conveyed by them to appellees.

The controversy in this case arises out of a sale by which appellants, Joseph W. Thompson and his wife, sold and conveyed to the appellees the said lot 274, Morton place. The particular question to be decided arises directly upon the agreement between the appellants and appellees as to the method of payment for the property conveyed. No question is raised as to this conveyance, its effect or validity, but the point in issue, aside from the question of rescission and that relating to the erroneous admission of evidence, is whether or not appellee Leo K. Fesler has paid the consideration for the property according to the terms of the written contract of sale by which he obligated himself to make certain payments for the Morton place property. In this connection the single question for our consideration is narrowed to the cash payment agreed to be made by the appellees as a part consideration for said property. The particular part of the contract which we are called upon to construe reads as follows:

“The buyers agree to pay to the sellers for said real estate, subject to a first mortgage of two thousand dollars, to the Marion Trust Company of Indianapolis, Indiana, the sum of three thousand dollars; said three thousand dollars payable eight hundred dollars in cash on the execution of this agreement, and said cash payment shall be made and received in the following manner: Four hundred dollars in cash on the execution of this agreement, and the sellers agree to accept an equity which belongs to the buyers in lot No. 230 in Osgood's Park addition to the city of Indianapolis, Marion county, Indiana, said equity amounting to four hundreddollars, and said sellers accept said equity as said four hundred dollars cash payment.”

“Commencing with May 1, 1912, the buyers agree to pay the sellers the sum of thirty-five dollars per month for twelve months. On May 1, 1913, the buyers agree to pay to the sellers the sum of three hundred dollars; that thereafter on May 1st each succeeding year following the buyers shall pay to the sellers the sum of five hundred dollars until three thousand dollars has been paid; said three thousand dollars, to be the sum total of all previous payments made to that date, not including interest payments.

The sellers agree contemporaneously with the signing of this agreement to convey to the buyers the aforesaid real estate by warranty deed, subject only to the aforesaid two thousand dollar mortgage to the Marion Trust Company, subject also to all taxes and municipal assessments after the year 1912. The buyers herewith agree to execute to the sellers a second mortgage upon said described real estate covering all deferred payments on said real estate. All of said deferred payments coming due after May 1, 1913, are to draw interest at 6 per cent. per annum, payable semiannually. *** All of said semiannual interest payments shall be paid by said buyers to said sellers in addition to the aforesaid monthly and yearly payments.”

The cause was tried by the court. The court found the facts specially, and stated its conclusions of law thereon to the effect that appellants take nothing, and judgment followed the conclusions of law.

Appellants filed their separate and also their joint motion for a new trial. Each of these motions contained 14 specifications which are identical in each motion. The only specifications presented on this appeal are that the court erred in the introduction of certain evidence.

The errors assigned are: (1) The overruling of the motion for a new trial; (2 and 3) that the court erred in its conclusions of law Nos. 1 and 2. The remaining assignments, Nos. 4, 5, 6, 7 and 8 all relate to the alleged errors of the court in its conclusions of law. The errors assigned by each appellant are identical in form and will be considered together.

Two witnesses, Thomas F. Carson and Linton A. Cox, on their direct examination, while testifying in behalf of appellees, were, over the objection of appellants, permitted to testify as to the value of said lot 230. Mr. Carson testified that the lot was worth $1,525, and Mr. Cox testified that it was worth from $1,575 to $1,600.

The appellants contend that the admission of this evidence was error; that the value of said lot was not in issue; that the only question was the value of appellee's equity or estate in said lot. Appellants argue that the question in controversy is the extent of the equity of Leo K. Fesler, whether in fact he had a $400 equity in the lot; that this equity was the interest Fesler had in the lot under his contract of purchase from the College Park Land Company; and that this equity or estate depended on the amount paid on the contract, and not on the value of the lot.

[1] The admission of this testimony, if error, was harmless as the court ignored it in making the special findings. The court failed to make any finding as to the value of the lot other than to find that nothing had been proved or attempted to be proved as to the actual value of said lot 230 in Osgood's Park addition, or of the actual value of the appellee Leo K. Fesler's interest therein at the time said contract was entered into, nor at any other time, except so far as the several contracts entered into may constitute admissions of such values on April 28, 1909, and on December 7, 1912.

[2] The judgment and the conclusions of law are based solely upon the facts as found by the court and not upon the evidence. There was therefore no error in overruling the motion for a new trial.

The facts, as found by the court, are substantially as follows:

In April, 1909, appellee Leo K. Fesler entered into a contract with the College Park Land Company for the purchase of lot 230 in Osgood's Forest Park addition to the city of Indianapolis for $1,325, payable as follows: $20 cash and $10 per month with 6 per cent. interest, payable semiannually until the purchase price was paid in full. This contract was executed in printed form and in a small passbook containing blank pages for the entry of payments and made therefor, this passbook being held and retained by said purchaser to be presented when payments were made. That appellee Leo K. Fesler made the $10 payments each month up to and including July, 1912, making a total of $400, and no more, paid by him on said contract.

That prior to and during the years of 1911 and 1912, until the execution of the deed, as hereinafter stated, Joseph W. Thompson was the owner in fee simple of lot No. 274 in Morton place, an addition to the city of Indianapolis, Ind., and on which lot there was during all of said time a valuable residence.

That on the 7th day of December, 1912, the appellants and the appellee Leo K. Fesler, pursuant to negotiations made prior thereto, entered into a contract in which appellants agreed to sell said Morton Place property to appellees, and appellees agreed to pay therefor in accordance with the terms and conditions as stated in that part of the contract hereinbefore set out.

Pursuant to negotiations and with a view of purchasing the property, appellees took possession of the Morton place property on the 1st day of May, 1912, and occupied the same until the execution of the above-mentioned contract of sale and purchase, and thereafter continued to occupy the same, and have ever since the 14th of December, 1912, owned and held the same as their property. That on the 14th day of December, 1912, the appellants, by their warranty deed of that date, conveyed the Morton place lot to the appellees as husband and wife. That thereupon the said appellee Leo K. Fesler executed his certain promissory notes for the installments of purchase money, secured by a second mortgage in which his wife joined, and paid the appellants the sum of $400 in cash, all as provided in the written contract of sale and purchase. That thereupon the said appellee Leo K. Fesler, by a written transfer and assignment in which his wife joined, transferred and assigned to Joseph W. Thompson the said contract of sale and purchase with the said College Park Land Company of said lot No. 230. That said College Park Land Company, by its written indorsement, consented to said assignment and transfer by Leo K. Fesler to Joseph W. Thompson. And the appellees thereafter paid such of the monthly installments of purchase money for which said notes secured by said second mortgage were so given as by their terms matured.

That prior to May 1, 1912, and from that date to the present time, the appellants resided in the city of Washington, D. C.; that on or after the...