Obering v. Swain-Roach Lumber Co.

Appellate Court of Indiana, 1927.

86 Ind.App. 632, 155 N.E. 712.

Dawson, pp. 295-296


Facts: Buhner died and his executor was going to sell some land.  Obering and Swain were going to make a deal whereby Swain would buy the land, sell it to Obering for $8,000, and harvest all the trees within four years.  Swain bought the farm and brought Obering the deed.  Obering repudiated and Swain sued for specific performance.  The trial court found for the plaintiff and ordered specific performance.  The defendant appealed.


Issue: Is the contract invalid “for want of mutuality”?


Rule: Just because the contract doesn’t kick in until the plaintiff does something to accept it and provide consideration doesn’t mean that the contract is unenforceable once the plaintiff does that thing.


Analysis: The court finds that the contract was unenforceable when it was signed, but became enforceable against both parties upon the plaintiff’s performance (buying the land from Buhner).


Conclusion: The judgment of the lower court is affirmed, specific performance is ordered against Obering.


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