Wallace v. Mertz, No. 12707.

• Docket Nº: No. 12707.
• Citation: 86 Ind.App. 185, 156 N.E. 562
• Case Date: May 17, 1927
• Court: Court of Appeals of Indiana

86 Ind.App. 185
156 N.E. 562

WALLACE
v.
MERTZ et al.

No. 12707.

Appellate Court of Indiana, in Banc.

May 17, 1927.

Appeal from Tippecanoe Circuit Court; Homer W. Hennegar, Judge.

Action by Roy W. Wallace against Carl O. Mertz, administrator of the estate of William Mertz, deceased, and another. Judgment for defendants, and plaintiff appeals. Reversed, with instruction.

[156 N.E. 563]

Jones, Davidson & Patrick and Randolph & Randolph, all of La Fayette, for appellant.

Gaylord & Sills and Joseph B. Ross, all of La Fayette, for appellees.

NICHOLS, J.

This is an action by appellant against appellees for breach of a written contract entered into between appellant and decedent, Mertz, and appellee Burt, whereby appellant agreed to lease certain premises owned by him to said parties upon the terms and conditions specified in said contract, and they in turn agreed to accept a lease of said premises from appellant. The action was originally filed as a claim against the estate of decedent, Mertz, and, upon such claim being disallowed by appellee Mertz, administrator of the estate of decedent, Mertz, the cause was transferred to the trial docket, and, upon motion of appellee Mertz, appellee Burt was made a party defendant thereto. Appellees filed separate and several demurrers to appellant's claim, which demurrers were sustained by the court, and final judgment rendered thereon against appellant, from which rulings and judgment this appeal; appellant assigning as error the court's ruling on the demurrers to the complaint. It is averred in the complaint, in substance: That in September, 1923, the decedent and Burt entered into a written contract with appellant, which reads as follows, to wit:

“September 27, 1923.

Ed Burt, William Mertz, La Fayette, Indiana-Gentlemen: Providing the agreement drawn up by Mr. J. B. Brady, which you have just read, can be completed, I propose to lease my garage building at Fourth and South streets to you for a period of five years upon the following terms:

You to pay $450 monthly rental in advance on the first of each month. Any change of alteration in the building to be subject to my written approval.

I retain 6 ft. x 10 ft. space in office near Fourth Street entrance and to retain the Indiana Refining Company lease; also one car space on first floor. Office and car space to be retained for entire term of lease. I also retain space occupied by paint shop until present orders are completed. I am to have one car space on second floor.

The machinery and equipment now in the building, attached or detached, belongs to the Wallace Motor Company and Brady Motor Company, and is not to be included in the lease. It is however agreed that you will take over certain Wallace Motor Company equipment, including everything on the list submitted to you at $3,250. One-half cash, balance 6 months note at 6 per cent.

This lease to be formally drafted and to contain the usual stipulations concerning the rights and remedies of all parties.

Very truly yours,

R. W. Wallace. [Appellant.]

Accepted: E. H. Burt. [Appellee.]

W. F. Mertz. [Decedent.]”

That the Brady agreement referred to in the contract had been drafted on September 27, 1923, and was read by the decedent and appellee Burt prior to the execution of such contract. That said Brady agreement was completed and executed on September 29 as drafted on September 27, 1923. That a copy thereof is by exhibit made a part of the complaint. That on September 29, 1923, the decedent and appellee Burt were notified, and had knowledge, that the Brady agreement had been executed. That, when the contract sued on was executed by the decedent and appellee Burt, they were then occupying the upper story of the building mentioned in said contract, and were occupying the office in said building and using the telephones therein; that the decedent and appellee Burt continued to occupy said premises, and after the above agreement of September 27th was executed and after the Brady agreement was executed. That appellant performed all the conditions and the requirements of such contract of September 27th on his part to be performed. That on or about October 3, 1923, after the contract sued on had been executed, and after the Brady agreement had been executed, the decedent and appellee Burt repudiated and renounced the entire contract sued on, refused to perform it, and moved out of, and abandoned, the premises. That, by reason of the repudiation and renunciation of said agreement and the abandonment of said premises, appellant was damaged in the total sum of $7,672.40, which damages are itemized in the complaint.

The Brady agreement reads:

“Sept. 29, 1923.

In consideration of the payment of $1,000 receipt of which is hereby acknowledged and of other considerations, R. W. Wallace, hereinafter known as the first party, J. B. Brady, hereinafter known as the second party, and Brady Motor Company hereinafter known as the third party agree that:

Whereas, first party now has opportunity of leasing the entire Wallace Motor Company

[156 N.E. 564]

Building, Fourth and South streets, La Fayette, Indiana, to the Burt-Mertz Company and therefore desires immediate possession of all that part of said building, lease for which is now held by Brady Motor Company, witnesseth:

1. The third party consents to and cancels its lease contract dated June 1, 1923, for said portion of said building upon condition that the first party purchase from second party, president of the Brady Motor Company, his 63 shares of stock of the Wallace Motor Company and assume the obligations as set forth in the agreement entered into by the stockholders of the Wallace Motor Company, dated May 29, 1923, and that his agreement be approved by all stockholders of the Wallace Motor Company.

2. Said J. B. Brady hereby sells said 63 shares of stock to and said R. W. Wallace hereby purchases said stock and assumes said...