ZIEHEN V. SMITH
42 N.E. 1080 (1896)
NATURE OF THE CASE: This was a dispute over the sale of real estate. Smith (D), vendor,
appealed a judgment, which affirmed a judgment in favor of Ziehen (P), vendee, for damages
for breach of an executory contract for the sale of real estate and affirmed an order
denying a motion for a new trial.
FACTS: Ziehan (P) made a contract with Smith (D) for D to convey to P a country hotel and
some lands. The contract was dated 8-10-1892 and the price was to be $500 down on signing
and $300 more 30 days later and the assumption of an existing mortgage and a new additional
second mortgage for $1,700. The total purchase price was $3,500. The transaction was set to
close on the 15th of September. A surprise in the transaction ensued when P found that there
was another mortgage on the property of $1,500 and that that mortgage was in the foreclosure
process. That foreclosure was granted on October 31st and the property was sold to another
party. The trial court granted judgment on the executory contract to P and awarded damages.
D appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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