I concur in the opinion of the court, but I think the plaintiff has shown no right of action on the contract.
This suit was brought by the appellant against the appellee on this contract:
“ State of Indiana, Madison county. In consideration of the sum of three hundred and thirty-one dollars and sixteen cents, due from me to Samuel A. Towell, the same being a: balance of the purchase-money due for the south half of lots numbered four and five in -the north part of the city of Anderson, Indiana, purchased by me of said Towell, I hereby agree and bind myself to pay and satisfy two notes for the amount of three hundred and thirty-one dollars and sixteen cents, executed by Samuel A. Towell to one T. S. Babbitt & Co., dated about December 4th, 1868, said notes being secured by a mortgage on the above described property, and hereby bind myself to keep the said Towell forever harmless from, and to fully pay and satisfy said notes.
“Jas. A. Pence.
“ September 27th, 1870.”
The appellee demurred to the complaint for three causes:
“ 1. Said complaint does not state facts sufficient to constitute a cause of action.
*309“ 2. There is a defect of parties plaintiffs, in this, the said .firm of T. S. Babbitt & Co. should be made plaintiffs herein.
“ $.■ There is a defect of parties defendants, because the said firm of T. S. Babbitt & Co. are not made defendants in this cause.”
This demurrer was overruled, and this ruling is assigned as a cross error.
The complaint does not show that the plaintiff has any right of action on or.under the agreement. It does not show that he has paid any part of the money, secured by mortgage •on the land he sold to the defendant subject to the mortgage, or that he has suffered, or is likely to suffer any loss, damage, or inconvenience from the delay of the defendant in paying off a mortgage on his own lands, and for which the plaintiff is in no wise liable unless the lands are insufficient to pay the mortgage debt, which is not intimated in the complaint. If the plaintiff could recover this money, the mortgage would still rest on the lands in favor of Babbitt & Co., who could foreclose it, and thus compel the defendant to pay the money twice.
The defendant purchased land of the plaintiff subject to a mortgage to a third person, and he agreed to pay off the mortgage as a part of'the purchase-money of the land. No time was fixed for the payment, and it might be at the pleasure of the holder of the mortgage, after the money became due. In such a case, the vendor can not recover of the vendee, unless he shows that he has been, or is likely to be, damaged in some way.
There was as great a breach of the contract, as soon as it was executed, as at any time thereafter, so far as the allegations of the complaint or the terms of the contract show.