Albee Hammond Homes, Inc. v. Bicknese
| Decision Date | 01 December 1969 |
| Docket Number | No. 1,No. 269A36,269A36,1 |
| Citation | 252 N.E.2d 808,146 Ind.App. 5 |
| Parties | ALBEE HAMMOND HOMES, INC., et al., Appellants, v. Donald D. BICKNESE et al., etc., Appellees |
| Court | Indiana Appellate Court |
William J. Moran, Hammond, for appellants.
Gilbert Gruenberg, Gary, for appellees.
This appeal involves two causes of action which were consolidated for trial and were also consolidated for the purpose of this appeal by order of this court on March 11, 1969. The appellees, plaintiffs below, brought their action on a written contract between themselves and the defendants below, appellants herein, Albee Hammond Homes, Inc., which was assigned number 65 PCC 256 in the Porter Circuit Court. Appellees raised the same cause of action against the appellants in a cross complaint in an action filed by appellants against appellees for defamation, which was assigned number 65 PCC 742 in the Porter Circuit Court.
Appellees' complaint was in one legal paragraph asserting a written contract between themselves and appellants for erection of ten advertising billboards in No. 65 PCC 256. They alleged the same contract in a cross complaint in the companion case against Albee Homes, Inc. and in which cross complaint they claimed Albee Homes, Inc. was the real party in interest. These causes were placed at issue by appellants' answer to both complaint and cross complaint by denial of appellee's allegations.
Appellants filed their action number 65 PCC 742 in one legal paragraph asserting defendants-appellees had defamed them by causing a malicious, slanderous letter to be written. The issues were closed by appellees' filing an answer in denial.
Trial was had by the court, which entered its special findings of fact and conclusions of law and entered judgment thereon against appellants on their complaint and in favor of appellees on their cause of action, and awarded appellees $9,083, plus $2,500 attorneys' fees.
The special findings of fact and conclusions of law in cause number 65 PCC 256 reads as follows, to-wit:
'SPECIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
'The court at the request of the defendant ALBEE HAMMOND HOMES, INC. and the cross-defendant ALBEE HOMES, INC. makes the following Findings of Fact in this case and states Conclusions of law thereon as follows:
'1. On April 17, 1963, there was entered into the following contract:
TO: Donald D. Bicknese
Evelyn H. Bicknese
Bick Sign Company
Gentlemen:
Albee Hammond Homes, Inc. R.R. #2 RT. U.S. 30, Crown Point hereby authorizes and directs you to paint and execute an advertising display at locations and at prices per month as indicated below, for Albee Hammond Homes, Inc. RR. #2. U.S. 30 Crown Point, as per design to be mutually agreed upon, the specifications and more particular description of which said design are separately set out, signed by the parties attached hereto, and made a part hereof, in a first class workmanlike manner, using the best materials now obtainable and to maintain the same for a period of Three (3) years.
Locations as agreed upon, per attached sheet agreement.
Void unless locations are signed and accepted by Joel Kaufman
Note--All accounts are payable in 30 equal monthly payments, the first of which is due and payable upon the completion of the work on the selected locations. Last 6 months to be paid in advance Total monthly charge $200.00. * * *
For the services specified herein Albee Hammond Homes, Inc. F.R. #2 Rt. U.S. 30, Crown Point, Ind. agrees to pay monthly in advance to Donald D. Bicknese and Evelyn H. Bicknese, or to whomsoever they may designate and at any place that Donald D. Bicknese and Evelyn H. Bicknese may designate, the aggregate sum of the price per month indicated above. Upon the failure of Albee Hammond Homes, Inc., Crown Point, Ind to make any one of the monthly payments due under this agreement, Donald D. Bicknese and Evelyn H. Bicknese shall have the right to declare all of the remaining monthly payments provided by this agreement, due and payable without demand. The failure of Donald D. Bicknese and Evelyn H. Bicknese to exercise such right upon any default shall not be construed as a waiver of the right to so exercise such right upon any subsequent default.
'In the event of default of three monthly payments Albee Hammond Homes, Inc. R.R. #2 U.S. 30, Crown Point, Ind. agrees that the entire balance specified in this contract shall immediately become due and payable and agrees to pay reasonable attorney fees and costs due to such non-payment.
'In the event that any of the above locations become lost during the life of this contract, or cannot be secured or in case at any time during the life of this contract any of the above displays are obstructed from view, or are wholly or partly destroyed or defaced, from any cause beyond your control, including the action of the natural elements, the happenings of any such events shall not act as a breach or termination of this contract, but such lost or obstructed displays shall be replaced at other locations to be mutually agreed upon, and such destroyed or defaced displays shall be restored to their former condition any such non- procurable locations shall be replaced with other locations to be mutually agreed upon; and the amount of advertising lost or not delivered while such replacement or substitution is being made shall be made up in an equivalent amount of advertising at the expiration of this agreement or at the election of Albee Hammond Homes, Inc., the following months payment may be reduced to a prorated basis based on $20.00 per sign per month, for the time that any sign or signs is or are lost to advertising during the preceding month.
'It is agreed that Donald D. Bicknese and Evelyn H. Bicknese reserves the right to refuse or to alter any copy which said Donald C. Bicknese and Evelyn H. Bicknese may deem for any reason objectionable or undesirable.
'It is agreed that Albee Hammond Homes, Inc. Crown Point Ind. shall in no manner be considered the owner or lessee of the advertising displays herein above mentioned and that Albee Hammond Homes, Inc., Crown Point, Ind. has no further right or control in or to the above advertising displays than are herein specified.
'For the above Albee Hammond Homes, Inc., Crown Point Ind. hereby promises to pay to Donald D. Bicknese and Evelyn H. Bicknese the aggregate sum indicated above $7,200.00 Dollars, in monthly installments as above provided, beginning on the date of the completion of the painting of the selected displays and the rendering of bills therefor; we further agree to pay for any displays not painted by reason of failure on out part to furnish or approve copy within fifteen (15) days after the date of this contract.
'It is expressly agreed that Donald D. Bicknese and Evelyn H. Bicknese are not bound by any stipulations, representations, or agreements not embodied in this contract.
/s/ Donald D. Bicknese
Donald D. Bicknese
/s/ Evelyn H. Bicknese
Evelyn H. Bicknese
Address: 1116 Aetna St
'2. That on May 16, 1963, the following exhibit was signed by Donald Bicknese and Joel Kaufman:
'3. That at that time Joel Kaufman was the manager and general agent of Albee Hammond Homes, Inc.
'4. That Albee Hammond Homes, Inc. was an agent of the cross-defendant Albee Homes, Inc, and the contract mentioned in Special Findings Nos. 1 and 2 was executed for and on behalf of Albee Homes, Inc., which was the undisclosed principal in and to such contract.
'5. That in compliance with said contract, the cross-complainants erected ten signs at locations agreed upon between the parties; that the signs were erected on the following dates:
(a) 661 Joliet Street, Dyer, Indiana--July 10, 1963.
(b) Lot 11, Block 30, Southland 3rd Subdivision, Lake County, Indiana,--June 20, 1963
(c) Northeast corner U.S. Highway 41 and Indiana Highway 8 June 20, 1963
(d) Southeast corner of 604 Brick Street, Valparaiso, Indiana June 20, 1963
(e) 5600 West Ridge Road, Gary, Indiana--July 17, 1963
(f) Chicago Heights, Illinois--June 10, 1963
(g) Sign on U.S. Highway 41, 1 1/2 miles North of U.S. Highway 30--June 10, 1963
(h) Sign opposite Blockhouse on Indiana Highway 55 near its intersection with
(i) Standard Oil Station--U.S. Highway 30 and Indiana Highway 51--August 6, 1963
(j) Southeast corner U.S. Highway 30 and Indiana Highway 53--June 10, 1963
'6. That on August 6, 1963, the cross-complainants made a demand on the cross-defendant for said payments then due under the contract.
'7. That the cross-defendant Albee Homes, Inc. failed and refused to pay any amount due on said contract and that said sum under the terms of the contract became immediately due and owing.
'8. That the cross-complainants were compelled to employ at attorney to enforce the terms of the contract, and that his reasonable service in connection therewith are worth $_ _
'9. That due to a windstorm on or about August 20, 1965, the sign at U.S. Highway 30 and Indiana Highway 53 was blown down and was not replaced.
'10. That the cross-complainants have fully performed all of the terms of the contract.
'11. That the cross-defendant Albee Homes, Inc. has failed and refused to perform any part of the contract by it to be performed.
'12. That the cross-complainants Donald Bicknese and Evelyn Bicknese, by virtue of the breach of contract by the cross-defendant Albee Homes, Inc. were damaged to the extent of $6,960.00 plus interest from August 6, 1963.
'As conclusions of law upon the facts, the Court states:
'1. That the law is with the cross-complainants Donald D. Bicknese and Evelyn H. Bicknese and against the cross-defendant Albee Homes, Inc.
'2. That the cross-complainants Donald D. Bicknese and Evelyn H. Bicknese are...
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