Toole & Co. v. Baer ( 1892 )

The petition of Toole & Company against Baer was demurred to generally. The demurrer was sustained, and the plaintiffs excepted. The declaration alleged: Baer is indebted to petitioners $868 with interest, for that on July 8, 1890, petitioners were agents of L. B. Payne for the sale of certain lands lying on the Columbus road and known as Payne’s lands, describing them. They were for a consideration entrusted with the sale of them to Baer at $76 per acre, the tract containing sixty-two and eight tenths acres, more or less. Out of said purchase money petitioners were to receive $868, and it was then and there agreed by Baer that he would pay this amount to them out of the purchase money for the lands, $300 cash and the balance in equal payments, twelve, twenty-four and thirty-six months from said date. As evidence of this agreement with petitioners, Baer executed in behalf of petitioners a writing, copy of which is annexed to the petition, and which was then and there delivered to petitioners. The compensation of petitioners, agreed to be paid by Baer as stated, constituted the only interest they had in the sale. Subsequent to the sale Payne tendered toBaer a warranty title, conveying to him the land in accordance with the sale. This deed Baer refused h> receive, without sufficient reason therefor, and declined to pay petitioners the compensation agreed to be paid in accordance with the contract mentioned, although all the conditions had been complied with, and declined to make the notes aforesaid, which would have been of the value of $568. Payne stood ready at all times to make the title or convey the land to Baer and comply in every respect with the contract of sale made by petitioners, and is still ready to do so. The amount so agreed to be paid and assured was to be paid as a part of the purchase money agreed on and credited thereon, to all of which Payne consented.

Annexed to the petition was the instrument signed by Baer July 8, 1890. It stated that Baer had that day bought sixty-two and eight tenths acres of land, at $76 per acre, through Toole & Company, from L. B. Payne, on the Columbus road, known as Payne’s; that he agreed to make notes to Toole & Company for their interest in the sale, after its consummation, the notes to become due same time and bear same rate of interest as those of Payne. “Consented this agreement subject to all conditions of contract of [sale] of said land and warranty titles.”

Hill, Harris & Birch, for plaintiffs. R. W. Patterson, for defendant.