Wolcott v. Hayes

• Decision Date: 27 April 1909
• Docket Number: No. 6,681.,6,681.
• Citation: 88 N.E. 111,43 Ind.App. 578
• Parties: WOLCOTT v. HAYES et al.
• Court: Indiana Appellate Court

43 Ind.App. 578

88 N.E. 111

WOLCOTT

v.HAYES et al.

No. 6,681.

Appellate Court of Indiana, Division No. 2.

April 27, 1909.

Appeal from Circuit Court, Green County; O. B. Harris, Judge.

Action by Eben H. Wolcott against John B. Hayes, Sr., and others. From a judgment for defendants, plaintiff appeals. Affirmed.

M. S. Hastings, J. G. Allen, E. E. Hastings, W. A. Cullop, and George W. Shaw, for appellant. Padgett & Padgett, for appellees.

COMSTOCK, P. J.

Appellant (plaintiff below) sued appellees to recover the purchase money on account of an alleged shortage in the number of acres conveyed by defendants to the plaintiffs on a contract of sale of real estate. The complaint is in two paragraphs. The first was filed September 22, 1905, in the Daviess circuit court, and in which it is averred: “That he made the purchase and paid the price of the land, ‘because of the fact that the said defendants, acting upon mistaken information and without fraudulent intent, stated and represented to the plaintiff and the other grantees, in said deed mentioned, that the total acreage of said real estate was 850 acres, and that said plaintiff and the other grantees, in said deed mentioned, in good faith and without any contrary knowledge relied upon and believed their said statements and representations as well as the recitals in said deed as to the total acreage,”’ etc. Issues were joined on this paragraph of complaint, and the case tried in the Daviess circuit court in January, 1906, resulting in a verdict for defendants. A new trial was granted in April, 1906, and the venue changed to the Green circuit court. On the 4th day of September, 1906, the appellant filed in the Green circuit court his second paragraph of complaint, which is based on the written contract of sale. None of the other parties to the contract, viz., Smith, Gilbert, and Blake, are made parties, plaintiff or defendant. Appellant avers in this paragraph that the contract provided that he and the other purchasers were to pay $40 an acre for the land, but that by mutual agreement the contract was so modified that the purchase price was changed from $40 to $36 per acre. Appellees answered this complaint by general denial and also filed a counterclaim, which appellant answered by general denial. A trial resulted in a verdict and judgment in favor of appellees.

The only error assigned is the overruling of appellant's motion for a new trial. The following facts are shown by the evidence: On the 31st day of October, 1901, the appellee, John B. Hayes, Sr., and his children, owned a large tract of land situated in Knox county, Ind., and estimated to contain 850 acres. About 20 days prior to that time, the appellee, acting for himself and his children, sold to one George A. Bright, a real estate broker, an option on this land, giving to Bright the option of purchasing the land within 10 days, at $36 per acre. Bright carried his option to the town of Wolcott, Ind., and informed appellant and his partner, a man by the name of Gipson, of the fact that he had the option. Wolcott and Gipson were real estate brokers at the town of Wolcott. They and Bright, Wolcott, and Gipson arranged between themselves to effect a sale of the land at $40 an acre, or a profit of $4 an acre, and divide the profits. These brokers got a Mr. Blake, Dr. Smith, and a Mr. Gilbert interested in the land as prospective purchasers. They finally concluded an arrangment among themselves, by which Wolcott and the Mr. Blake were to take 450 acres of the land at $36 an acre, and Smith and Gilbert take 400 acres at $40 an acre. Before these arrangements were completed, the option was about to expire, and Bright got an extension for 10 days more. Appellees were not acquainted with either Gipson, Wolcott, Blake, Smith, or Gilbert. They were brought into the deal altogether by Bright, who wanted them to take the land on his option. On Saturday before October 31, 1901, Gipson, Smith, Gilbert, and another came to Washington, Ind., to look at the farm, and Bright took them to see it. Hayes was not along. Bright and party returned to Washington, from the farm, about dark, and Hayes met them at Bright's office about 9 o'clock that same night. When Mr. Hayes got to the office, Bright informed him that they were there to close the deal on the option he held. Gipson asked Hayes what he had to show for the description and number of acres in the farm. He told them he had a tax receipt, but, when he produced the tax receipt, it gave the number of acres, but did not give sufficient description, and he then went to his home and got an abstract and took it back to Bright's office. Hayes was asked about having the land surveyed for the purpose of ascertaining the number of acres, and Hayes said he was willing to survey the land, provided the purchasers would agree to pay for any overplus, and, if it did not come up to the estimated number of acres, he would make a like reduction, or they could take it at the estimated number of acres, or they could let it go. After some further talk, they informed Hayes that they would take the land at what the abstract called for, and risk it. Then Gipson commenced to write a contract, and Hayes said that he need not write it, that he would not sign any paper unless he had some lawyer to look it over for him, and the parties said they would have to go home and could not wait. Hayes told them to go home, for he would not sign any contract until he had it examined by a lawyer. Then the meeting broke up, without any contract having been made. The next morning (Sunday), as Hayes was on his way to church, he met Gipson, who informed him that he had stayed over to fix the contract, and Hayes said, “All right.” Mr. Hayes then employed an attorney to represent him in the negotiations, and informed him that the understanding was that he was not to be bound by any certain number of acres, and the purchasers were to risk the number of acres, and he wanted it fixed that way. Mr. Hayes and his attorney then met Mr. Gipson, who said to him, “I suppose you will warrant the title to 850 acres,” and Hayes said, in answer to that, “I will do nothing of the kind.” Gipson said, “Why, are you afraid that the land would not hold out 850 acres? Hayes said, “No, but he had no information as to the quantity of land, except such as he got from his abstract, and that he would not warrant the title to any particular quantity of land, unless it was first surveyed, and that, if they wanted it surveyed, the matter would have to be delayed until a surveyor could be taken out there, and the land surveyed, and, if that was done, he wanted it understood that he was to be...