On Petition for Rehearing.
Ibach, J.5. Appellants have filed an extensive and forceful brief in support of their petition for a rehearing. They contend that the court erred “in refusing to review and pass upon the assignment of error as to special finding seventeen, as being wholly outside of the issue.” Said finding is as follows: “That the plaintiff performed all the parts of said contracts on his part to be performed, according to the terms thereof.”
Appellants also claim that the court erred in failing to- determine whether the special finding of facts sustains the first conclusion of law stated, which is as follows: “That the law is with plaintiff, and he is entitled to recover from defendants the sum of $4,500, together with his costs and charges laid out and expended in this action, with relief from valuation and appraisement laws.” Appellants concede that the vital and controlling question is presented by the facts found and the conclusions of law stated. The questions raised by this petition for a rehearing were presented in the original briefs, and were considered by this court. We quote from the original opinion: “Such being the case, the facts found by the court fully sustain both the conclusions of law. ’ ’ *547We have, however, again carefully examined the briefs presented by appellant, together with the record before us, and we observe that the trial court found that appellee “performed 'all the parts of the contract on his part to be performed ; that he provided, and paid to appellants, the money for the improvement of Fourteenth street; that the street was improved, .and appellee charged the cost thereof to appellants; that said amount is unpaid.” Whether this finding is within the issues is not for us to decide, as the issues have not been presented for the consideration of this court.
It is further insisted by appellant, that the provision in the contract for the improvement of Fourteenth street was not an independent contract, and that the money paid by appellee was not to be repaid until after the land contract had been disposed of. The contract between the parties stated particularly that the land — about fifty-eight acres, the actual amount to be determined thereafter — was sold by appellee to appellants for $1,000 an acre. It also contained the provision that if the land was not paid for, in the manner specified, within three years, appellants were to execute their note and mortgage to appellee for the unpaid balance of the agreed purchase price, and he was to convey to them the land remaining unsold. We find no mention that any money paid out by appellee for the improvement of Fourteenth street was taken into consideration in the final settlement for the sale and purchase of the land. The only manner in which the improvement of Fourteenth street is referred to in the contract, is that appellee was to make such improvement, and charge the expense thereof to the buyers of the property. There is no uncertainty in this contract, and it cannot be successfully claimed that the sum of money advanced for such improvement is to be taken as a part of the purchase price of the real estate, or is to -be considered in closing up the agreement relating to the sale thereof.
It also appears from the findings, that when appellant Cooper became one of the company, he, together with ap*548pellants Bradley and Stout, entered into the following agreement :
“It is further agreed that'said Bradley and Stout will assume and pay all bills of every kind for surveying and platting, and for recording plats, etc., contracted by them up to this time, except the bills for advertising in the newspapers in Anderson, which bills are to be paid by the three parties hereto, each paying a third thereof, and likewise in the future, each party hereto is to furnish and pay a third of all expenses contracted in laying out said lands, grading streets, advertising and selling lots, and all other expenses connected with the selling of said land.”
In addition to this, the findings show that when Backus bought into the firm, the following agreement was entered into between the appellants:
“It is further agreed that said Stout is to pay his share of the bills due and debts contracted up to this time, except the debt contracted for the improvement of Fourteenth street, running through said land, and all bills made in thé future are to be paid in equal amounts by Bradley, Cooper and Backus.”
It must be conceded that the debt relative to the improvement of Fourteenth street was one to be paid to appellee by appellants, in addition to the land when the improvement was completed. This is fully found in the court’s findings and in the record.
The court finds that the money, by means of which said street was improved, was advanced by appellee to appellants Stout and Bradley, before appellant Cooper became one of the firm. After Backus and Cooper entered the firm, said money was paid out by Bradley, for the improvement of the street. When the street was completed, and the cost thereof was known and paid, Bradley executed the following instrument to appellee:
“Anderson, Indiana, August 19, 1892.
Received of Jacob H. Harter $3,019.95, drawing interest at six per cent from December 7, 1891.”
*549In view of these agreements, set out in the court’s findings, and in view of the further findings that said sum of money was paid to appellants to be used in improving such street through the land purchased by them, in accordance with the terms of the original contract between the parties, and that said sum has never been repaid to appellee, the court was justified in stating the conclusions of law that it did, as they are supported fully by the facts as found. We are content to abide by the opinion formerly expressed on this point, which is the only one presented by the appeal.
Petition for rehearing overruled.