The record-union., 1891-01-25

L
ments were made, and that the sum of 81 900.
| with interest, became due, according to the
| terms of said contract. on the ] ST day of May.
1883, no part of which has been paid by dc
| fendant although often requested SO to do.
That plaintiff has duly performed all of the
conditions of said contract to be performed by
| him to this time and has been constantly anG
| now is ready and willing, and prior to the in
stltution OF this suit Offered to execute and de-
| liver to defendant q deed of said premises, to-
| eether with q certificate of title. upon compli-
ance by defendant with the terms of said con-
tract as therein set forth, but defendant said
he would not accept u deed, and refused to
pay said money"
The agreement set out contains this provis-
| lon 1t Is further agreed that time is of the
essence OF TINS contract, and in the event Of
| failure to comply with the terms hereof by
| said party of the second part, the said party of
the first part shall be released from ali obliga-
| tions in law or equity to convey said property
and said party of the second part shall forfeit
all right thereto, and to moneys heretofore
paid under this contract, and all his interest
| thereupon Immediately cease, as fully as if
said moneys had never been paid or this agree
ment entered into.
"And the said party of the first part on re-
| ce1ving such payment, at the time and in the
| manner above mentioned, agrees to execute
and deliver to. the said party of the second
deed, with certificate of title"
The defendant, by his answer denied that
plaintiff and defendant entered into the
written agreement, a copy of which is set out
| in the complaint admitted that he signed it,
and averred that his signature thereto was
obtained by false and fraudulent representa-
tions OF the said plaintiff made by and
through his agents employed by him for the
sale of said premises in said contract de-
by one c. j. Longstreet to purchase the prop
| erty, and declined to do so; that Longstreet
and d. 6. White. his partner in the real estate
| agency business, informed him that they had
| contracted to purchase the property in his de-
fendant's, name, and had paid on account of
the purchase price sum of money, which
| they claimed to have advanced for him; that
| he then and there refused to confirm the pur-
chase or to take the property, whereupon they
produced the written contract, copy of
| Shlch is set out In the complaint, and which
had then been signed by the plaintiff and in
sisted that he should execute it and become
the purchaser of the property, and that he
positively refused to make the purchase or
sign the contract; that upon such rafusal they
| informed the agent of plaintiff for the sale of
the property that defendant refused to sign
the contract, and offered to return the same to
the agent and cancel it, and demanded re-
| turn of the money paid by them on account
thereof but the agent refused to receive or
cancel the contract, or to repay the money:
that thereupon it was agreed between them
that White should become the purchaser.
| procure the signature of defendant to the con-
tract, and take an assignment thereof and pay
street and White informed defendant of this
| agreement, and requested him to attach his
| signature to an assignment Endorsed on the
contract to White, and that he at first refused.
but finally did it upon their assurance that it
| incur no liability Hereunder; that subse-
quently upon like request and assurance he
signed the contract; that the plaintiff there
after received the contract and the first and
second payments therein provided for with
full knowledge and notice that White was the
purchaser of the property and the real party
| in interest as the vendee thereof; and that the
| plaintiff did not at any time call upon defend
ant for any money or to comply with any of
| the terms of the contract until after White
had made default in the last payment, and
| that defendant never did make any payment
| for or on account of the said purchase or fur
| nish any money therefor.
| The case was tried and the findings of the
| court were as follows:
First-That on the 9th day of September,
| 1887, the plaintiff being the owner of the par
| Gel of land described, conferred into an agree
ment in writing with the defendant, G. F.
! Mohn, ST., whereby the plaintiff agreed to sell
and the defendant agreed to buy said land
| upon the terms and conditions set forth in
/ plaintiff IS complaint and the exhibit marked
| Plaintiffs Exhibit No. g."
Second-That Longstreet and White were
not the agents of plaintiff, or employed by
him for the sale of the said premises.
Third-That the signature of the defendant
to the said agreement of purchase and sale
| representations of the plaintiff, made by and
| through his agents.
Fourth-That plaintiff did not accept and
receive the contract, or the first and second
payments thereon, with the knowledge and
notice that White was the purchaser of the
property, or the real party in interest as the
| VenQee LnGTeOI.
Fifth--That the plaintiff. prior to the institu-
| ton of thiseuit, offered to execute and deliver
to defendant deed of the premises, together
with certificate of title, and demanded of
| him the balance due on the contract but de-
| PENDANT declined to accept the deed and refused
| to pay the money.
| SiXth-That there is now due the plaintiff
upon said contract the sum of 81, 81, prin-
| cipal and interest.
The court gave judgment for the plaintiff
for the amount found due, with costs, and the
1 a n pr 1ad
1t is contended for appellant that the find
ings We're defective and insufficient in several
particulars.
| First-It is claimed that there was no suf-
icient finding that defendant ever executed the
contract set forth in the complaint, or as to
what were the terms and conditions upon
\ which the sale was made. This position is
rested upon the last clause of the first finding,
| that the parties entered into an agreement to
| sell and buy the land upon the terms and con-
ditions set forth in the complaint, ana the ex-
| hibit marked PLAINTIFFS exhibit No. 9. 1t is
said that this exhibit is not made part OF the
pleadings, findings or record, and is not re-
| ferred to except in this manner. But the con-
| tract of sale was set out in hdec UeTtd in the
complaint. The defendant admitted that he
| signed that contract, and only alleged IN SUB,
sense, for the reason that his signature was
obtained by fraud. There is no question,
Therefore as to what were ,he terms I'm ana con-
| signed, and on which the plaintiff relied for a
| recovery. The only question then is, was the
OefenQant DOunu Dy the contract, or uot oounu
| by it, because of the alleged frauds9 The words
| sand the exhibit marked PLAINTIFFS exhibit
| No. 81 may be rejected as surplusage, as the
| finding is complete without them. 1t may be
| remarked in this connection, that heevidence
/ is not brought up in the record and we are not
| advised as to what was introduced, but, If
| need be- we might assume that plaintiff offered
| his contract and it was received and marked
| as his exhibit No. g"
! 1t is next objected that the court found only
| the amount "due the plaintiff upon said con-
tract and not that the sum named was due
! from defendent. But as the plaintiff and de-
1 fendant were the only parties who signed the
/ contract, 1t must follow as a necessary infer
ence, in view of the other findings that IL any
! thing was due the plaintiff 1t was due from
| the defendant We think therefore that this
| finding was sufficient.
1t is further objected that the findings as to
! the affirmative matters set up in the answer