Washington Glass Co. v. Mosbaugh

• Decision Date: 14 January 1898
• Citation: 19 Ind.App. 105,49 N.E. 178
• Parties: WASHINGTON GLASS CO. v. MOSBAUGH.
• Court: Indiana Appellate Court

19 Ind.App. 105

49 N.E. 178

WASHINGTON GLASS CO.

v.MOSBAUGH.

Appellate Court of Indiana.

Jan. 14, 1898.

Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.

Action by the Washington Glass Company against Conrad Mosbaugh. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Shirts & Kilbourne and John W. Kern, for appellant. Christain & Christain, for appellee.

WILEY, J.

The only question presented by this appeal is the sufficiency of the complaint. On August 1, 1892, the Cicero Improvement Company entered into a contract with the appellee and divers other persons, whereby appellee and such other persons agreed to purchase a certain number of lots, at a fixed price, that were thereafter to be laid out and platted in the N. E. 1/4 of section 1, township 19 N., of range 4 E., in Hamilton county, Ind. The consideration for this contract on the part of the appellee was that there was to be located in the town of Cicero, in said county, a certain factory or factories, and the lot which was to be conveyed to the appellee should be apportioned and located in the manner agreed upon by the appellee and others, who were parties to the contract. On the 6th day of August, 1892, the Cicero Improvement Company entered into a written contract with the Washington Glass Company, whereby it was provided that the Washington Glass Company should locate and build on certain real estate one 16-pot glass-bottle factory, and were to employ not less than 150 persons therein, and that the weekly pay roll of such employés was not to be less than $1,500 per week. It was further agreed that said glass company was to lay out in town lots a certain portion of the real estate of which it was to become the owner, and to plat the same into lots, within 10 days from the execution of the contract; and the Cicero Improvement Company bound itself to procure a sale of 150 of such lots, at an average price of $200 per lot, to be paid for one-third cash, one-third in one year, and one-third in two years, secured by mortgage; the deferred payments to bear 6 per cent. interest. It was further agreed that the building of the factory should commence within 30 days, and be prosecuted as rapidly as practicable, to its completion. There were other conditions in the contract, but, as they have no binding effect upon the question here involved, it is unnecessary to recite them. These two contracts are made exhibits to the complaint, and form the foundation of the action. The complaint is very lengthy, but the question that is presented for our consideration may be briefly stated as follows: The complaint avers that the appellant has performed all the conditions on its part, as affected by the said contracts; that said real estate was platted into lots, and that the appellee became a subscriber under the first contract mentioned, to purchase one of said lots at and for the price of $200; that after said lands had been platted into lots the appellee and nearly all of the subscribers for lots met, at a time and place agreed upon, for the purpose of agreeing upon a plan for the selection of the lots so agreed by them to be taken, and that said meeting was organized by the selection of a president and secretary; that it was agreed that strips of paper, each slip bearing the name of one subscriber, should be placed in a receptacle, and the same drawn out by a committee, which was then appointed for that purpose (the name of the subscriber first drawn to have the first choice of lots, and so on in the order of each name drawn); that thereupon the secretary of said meeting prepared the necessary papers, and said drawing was had; that the seventy-ninth name so drawn was the name of the appellee, which indicated that the figure “79,” opposite his name, was the seventy-ninth choice; that the proceedings of said meeting were reduced to writing; that, after said drawing was completed, all the subscribers participating therein adjourned to reassemble at such platted ground for the purpose of selecting their lots in accordance with said drawing; that in pursuance therewith the appellee made the seventy-ninth choice, in accordance with said drawing, and selected lot number 25 in said addition; that, observing the number upon the stake thereon, he selected and took possession of the same as his choice, and then and there so announced and reported to the party who was keeping the record, and, with such announcement being made by the appellee, it was so entered opposite his name; and that he then selected and took possession of said lot. The complaint further avers that the lots so drawn were of unequal values, and that, when appellee selected said lot No. 25, it was withdrawn from the distribution and set apart to him, and the remaining subscribers were required to, and did, make their choice and selection from the other lots which remained; and that thereafter neither the appellant nor its grantors had or exercised or claimed any possession or dominion over said lot. The complaint then contains the following averment: “Which possession was so taken under and pursuant to such contract, and with the knowledge and consent of plaintiff. In making said selection of lots by said drawing, plaintiff neither participated therein, nor counseled nor advised the same, in any way.” The complaint further avers that there was a mortgage upon the real estate which appellant platted into lots, and which were disposed of as aforesaid; that said mortgage was to secure the payment of two notes of $900, due in one and two years; that it was stipulated in said mortgage that when any of the said lots were sold the mortgage should be released, as to the lots so sold, on payment to the mortgagees of an amount equal to the proportion borne by one-fifth of an acre to the amount of said mortgage remaining unpaid; that, before the commencement of this suit, appellant tendered to appellee a deed with covenants of warranty, and demanded of him payment and settlement by notes, according to said contract, which he refused. It further appears from the complaint that at the time of the making of the said two contracts the Washington Glass Company was a co-partnership, and that before the commencement of this action it was duly incorporated under the laws of this state; that all the rights, assets, and franchises of said firm were, upon the creation of said incorporation, transferred to it. The Washington Glass Company partnership and the individual members thereof were made parties defendant, and each of them filed a disclaimer. The trial court sustained appellee's demurrer to the complaint, and such ruling is assigned as error. Counsel for appellee have raised and discussed three questions: (1) That the contract between the Cicero Improvement Company and the appellee and others is in parol, and therefore within the statute of frauds; (2) that appellant cannot recover in this action, of appellee, the value of the lot, because the scheme devised for the distribution or choice of lots was tainted with the vice of a lottery; and (3) that the complaint shows that at the time of the tender of the deed to appellee the lot selected by him was incumbered by a mortgage, and he was not bound to accept a conveyance with such incumbrance.

Appellant and appellee both treat the contract between the Cicero Improvement Company and the appellee as being within the statute of frauds, but appellant contends that it is taken out of the statute by part performance, in that appellee took posession of the lot. It is upon this theory that both appellant and appellee discuss the question. With all due deference to counsel and the learned judge who tried the case below, we are unable to see, under the facts pleaded, how the statute of frauds is applicable. It is not an action to enforce a parol contract for the sale of real estate, nor for specific performance, but to enforce the collection of the purchase price of real estate. So far as applicable here, the statute of frauds is as follows: “When contracts must be in writing: (1) No action shall be brought in any of the following cases: * * * Fourth. Upon any contract for the sale of lands.” Rev. St. 1894, § 6629 (Horner's Rev. St. 1897, § 4904). If appellee was suing appellant uponthe contract, and demanding that it convey to him the lot for which he subscribed, we would have a different question presented, and the appellant might possibly invoke the provisions of the statute we have just quoted, to defeat the action; but, upon the complaint as presented to us by the record, it has not, in our judgment, any application. We must therefore treat the contract set out in the complaint as a parol contract for the sale of real estate, and this proceeding as an action to collect the purchase money. The appellant, by its complaint, avers and shows a readiness and willingness on its part to carry out its part of the contract, and to convey the real estate to the purchaser. The question now before us has been settled in this state by the supreme court, and is no longer open to doubt. Schierman v. Beckett, 88 Ind. 52. Appellee Beckett sold to Martin Schierman, by parol contract, certain real estate in this state, and said Schierman executed to Beckett his promissory note for a part of the purchase price, and the suit was upon such note. Beckett showed a willingness and ability to carry out the contract, by conveyance and otherwise, and recovered the amount due. At the time the note was executed, the following receipt was given: “Aurora, Ind., Feb. 16th, 1881. Received of Martin Schierman his note for the sum of $200.00 as an advance payment of his purchase of the E. 1/2 of N. W. 1/4 of S. 11, Town. 5, R. 3 W.; also, S. 1/2 of S. W. 1/4 of Sec. 2, Town. 5, ...