Opinion
January 10, 1908.
Sanders Shanks, for the appellant.
Fromme Brothers, for the respondent.
The judgment must be reversed. The contract given by the defendant to the plaintiff, when the latter paid the former the $500 on account of the purchase price of the land, appointed a day for the making of a more formal contract, and the payment of an additional sum of $1,000 by the plaintiff. When the parties met the plaintiff demanded that the formal contract be drawn to bind the defendant to get three mortgages of the Title Company on the land for $15,000, i.e., one on each of the three lots for $5,000, and to be paid on the purchase price; and because the defendant would not give such a contract the plaintiff refused to go on and demanded back the $500 he had paid. He was not entitled to such a contract. The terms fixed by the informal contract were, in sum and substance, that the plaintiff should pay $30,000 for the land, by paying in cash $500 on the signing thereof, $1,000 additional on the signing of the formal contract, and the balance on the deed day as follows, viz.: $4,500 in cash, and the balance of $24,000 by raising what he could on first mortgage on the property, and the balance by a purchase-money second mortgage on the property to the defendant; or, the defendant had the option of accepting $15,000 in first mortgages on the said property in lieu of that amount of the cash to be paid as aforesaid. This option evidently contemplated that the defendant might be willing to accept that amount in mortgage instead of the plaintiff getting that amount, or more, or more likely less, of the title company (or some one else) on mortgage.
The judgment should be reversed.
JENKS, HOOKER, RICH and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.