Thomas v. Mathis

92 Ind. 560, 1883 Ind. LEXIS 511

• Court: Indiana Supreme Court
• Decided: October 19, 1883
• Docket: No. 10,390
• Status: Published

Opinions

Franklin, C.

This suit was commenced by appellant against appellee upon the following written contract, dated July 25th, 1881: “This is to certify that I have this day sold to W. B. Thomas all the corn on 200 acres on my farm now growing, at thirty cents per bushel, in crib, corn to be weighed on mj^premises, and said Thomas to have the use of my scales for weighing; and I further agree to have corn all husked and in crib by January 1st, 1882. Thomas to pay $500 by November 1st, 1881, and balance of money by January 1st, 1882, or as soon as shelled and weighed.

“ S. B. Mathis.”

A demurrer to the complaint was sustained, ’and judgment for costs was rendered upon the demurrer for the defendant. 'The ruling upon the demurrer has been assigned as error.

The first objection to the complaint is, that the contract -does not contain any description of the land upon which the -corn was growing, and that it was therefore void for uncertainty.

In the case of Colerick v. Hooper, 3 Ind. 316, where the -contract was “ I have this day sold my lot to Alexis Coquillard, on the plat in the town of South Bend; on the plat of said town on the river bank,” it was held that parol evidence was admissible to identify the particular lot intended to be conveyed, and that the contract was therefore sufficiently certain to be the foundation of a bill for specific performance.

In the case of Torr v. Torr, 20 Ind. 118, it was held: “ If the contract states sufficiently every other fact required in such a contract by the statute of frauds, but fails clearly to identify the land to be conveyed, by an intelligible description, but contains a description which, so far as it goes, is consistent, such ambiguity may be explained and the defective description made complete by extrinsic parol evidence, provided the necessary averments .are contained in the complaint.”

In the case under consideration, the description of the land ■upon which the 200 acres of corn was growing is “ my farm,” and the complaint contains all the necessary averments to identify the land. Considering things certain which can be made certain, we think the complaint in this case establishes sufficient certainty' as to the land upon which the corn was growing, and that the contract was not void for uncertainty.

It is further objected that the contract sued on is signed by the name, style and description of “ S. B. Mathis,” and the complaint nowhere avers that the defendant thus executed the contract.

The complaint, however, shows that the defendant did ex-eeute the contract, and that is sufficient. Its execution could not be put in issue unless denied under oath. Fee v. State, ex rel., 74 Ind. 66.

Filed Oct. 19, 1883.

It is further objected that the complaint does not aver any demand for the corn. It, however, does allege that the plaintiff, at the proper time, went twice to the defendant’s house-to pay him the advance payment on the corn; that the defendant was absent and had left no person authorized to receive such payment; that he tendered it to the family, which was refused, and that he tendered it to the defendant upon his first return home, which was also refused. And that the defendant wholly refused to further keep the contract; that, the plaintiff was ready and willing at the proper time to pay the advance payment, and continued so at all times thereafter, and at the maturity of the contract was ready and willing to pay the full contract price for the corn, and receive-the same, but the defendant wholly failed and refused to-keep any part of the contract. We think these allegations; show a sufficient excuse for not averring any specific demand for the corn, and that the complaint was sufficient to withstand a demurrer. The court erred in sustaining the demurrer to the complaint.

The judgment ought to be reversed.

Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is in all things reversed, at appellee’s costs, and that the cause be remanded, with instructions to the court below to overrule the demurrer to the complaint and for further proceedings.