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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.

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