Goodwine v. Kelley

Decided April 19, 1904

Indiana Court of Appeals · decided 1904-04-19

Specific Performance.-— Contract for Sale of Real Estate.— Inequality. —Plaintiffs contracted in writing to sell defendant a farm, the purchase price to be paid by the immediate delivery of a grocery of the value of $2,000, the payment of $1,625 in cash upon the delivery of the deed and the execution of a note secured by mortgage. Plaintiffs were to furnish an abstract of title as soon as it could reasonably be compiled, and to convey the real estate by warranty deed. No provision was made in the contract for the return of the grocery in the event of the failure of defendant to obtain title to the real estate, and no provision under which specific performance could be enforced. Held, that the contract was unequal, and that suit could not be maintained by plaintiff for specific performance, pp. 58-61. Vender and Purchaser. — Breach of Contract. — Bemedy.—Suit may be maintained for damages for failure to perform an executory contract in writing for the sale of real estate or for specific performance; an action at law for the purchase price will not lie. p. 61. Same. — Breach of Contract by Vendee. — Measure of Damages. — The measure of damages for breach of contract to purchase real estate is the difference between the price of the property as fixed in the contract and the fair cash value thereof at the time of the breach of the contract, p. 62.

Relies on Allen v. Pockwitz · New Telephone Co. v. Foley

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1904-04-19

How this case has been cited

Cited by 20 later decisions — most recently June 2006

20 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Concurring Opinion.

Roby, J.

¶2The contract between the parties stipulated that appellees should furnish an abstract of title as soon as could be reasonably done, it to be compiled by an abstracter to be approved by appellant, the same to show a title to said real estate in the “party of the first part which the party of the second part shall deem to be a sufficient and satisfactory title.” I think the action is one to compel the specific performance of this contract, and I do not think the complaint sufficient as against a demurrer for want of facts for the reason, in addition to those stated in the opinion, that it does not contain averments showing that the abstracter who made the abstract was approved by appellant, nor that the title shown thereby was deemed to be sufficient by her. New Telephone Co. v. Foley, 28 Ind. App. 418; Allen v. Pockwitz, 103 Cal. 85, 36 Pac. 1039, 42 Am. St. 99.