Bongiovanni v. Fickett

BURROUGHS, J., pro tem.

This is an action to recover overdue installments of principal, together with interest and an attorney fee, under the terms of a promissory note. The court awarded plaintiff a judgment in the sum of $1262.66, but deducted therefrom a counterclaim in favor of the defendant in the sum of $1129.38, and entered judgment in favor of plaintiff in the sum of $133.28. From the judgment the plaintiff has appealed.

The main issue involved is whether the consideration for which the promissory note was given was a part of the purchase price of certain personal property under and by virtue of the terms of an option for the sale thereof, or whether it was given as a part of the consideration for the same property in pursuance of a new and independent contract between the parties. If the option was the basis of the sale of the property then the court was in error in allowing the counterclaim; otherwise, its judgment is correct. The facts are as follows: On May 31, 1928, the plaintiff as the proposed seller and the defendant, W. H. Fickett, and two other persons as the proposed buyers entered into option agreement whereby the former agreed to sell to the latter per

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sonal property commonly called the “Rock Sand and Gravel Plant”. There was also included in the option a lease of rock, sand and gravel land, and permits from the United States Department of Agriculture for the use of other lands of a similar character. The purchase price named in said option was the sum of $95,000 to be paid as follows: $5,000 within 30 days from the date of the option; $10,000 within 90 days from said date; $10,000 within 150 days from said date; $5,000 within 180 days from said date; making a total sum, to be paid of $30,000. The remaining $65,000 was an indebtedness of the plaintiff to third persons secured by a lien upon said property. There was also a provision in the option that the proposed purchasers were to promptly pay when due each and every installment of rent, royalties, dues, obligations, taxes, charges and other liabilities due and to become due under and by virtue of a certain agreement, lease and permit which were included in the option, in addition to paying to the plaintiff the $30,000 as aforesaid. That when the last-named sum had been paid to the plaintiff, it then became plaintiff’s duty to execute the necessary conveyances to the defendants of all of said property. The option to remain in full force and effect for the term of 180 days from the date thereof, unless sooner terminated by plaintiff because of failure of the proposed purchasers to make the payments at the times and in the manner provided in the option, or for failure to fulfill the terms of said agreement, in which case the option was to become null and void, and whatever sums of money had been paid thereunder were to be retained by the plaintiff as liquidated damages. The defendants entered into possession of said property on June 1, 1928, and continued in possession thereafter.