Colonial Discount Corp. v. Berkhardt, 1-581A157
| Decision Date | 18 May 1982 |
| Docket Number | No. 1-581A157,1-581A157 |
| Citation | 435 N.E.2d 65 |
| Parties | COLONIAL DISCOUNT CORPORATION, Defendant-Appellant, v. Donna Mae BERKHARDT, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
James M. Houck, Houck & Houck, Greencastle, for defendant-appellant.
Stephen S. Pierson, Calbert, Bremer & Pierson, Greencastle, for plaintiff-appellee.
Defendant-appellant Colonial Discount Corporation (Colonial) appeals a judgment entered in the Putnam County Court after a bench trial in favor of plaintiff-appellee Donna Mae Berkhardt (Berkhardt) upon a complaint for damages.
We affirm.
On March 29, 1979, Berkhardt and Colonial entered into a contract for the purchase and sale of real estate and a mobile home. The sale agreement and other form documents were prepared and provided by Colonial. Under the terms of the contract, Colonial specifically provided that it would seal the leaking roof of the mobile home. Colonial never repaired the roof and as a result the roof continued to leak and water from the leaks damaged the ceiling, walls, electrical fixtures and other parts of Berkhardt's home. In November, 1979, one Donald A. Gedert, owner of a mobile home dealership, inspected Berkhardt's home and prepared an estimate of the cost to repair it which totalled $1,259.07.
On December 8, 1980, the case was tried before the court and Mr. Gedert testified that due to inflation, the labor costs, figured in his estimate, had increased by two dollars per hour since preparing the estimate. The trial court awarded Berkhardt $1,310.97 plus court costs.
Because all five of Colonial's arguments challenge the amount of the damage award, we consolidate and restate the alleged errors into the following single issue: Did the trial court apply the proper measure of damages?
Colonial argues that because the written agreement which Berkhardt signed contained a provision that the buyer accepts the property in "as is" condition, the trial court erred in admitting parol evidence on defects in the mobile home other than damage relating to the roof which Colonial specifically had agreed to repair.
The trial court entered a general judgment for $1,310.37 without specifying its reasons. The standard of review of a general judgment requires affirmance of a trial court's judgment if there is any legal theory upon which the trial court's action may be sustained. Clouse v. Fielder, (1982) Ind.App., 431 N.E.2d 148.
The measure of damages in a breach of contract case is the loss actually suffered by the breach, Hoosier Insurance Company, Inc. v. Mangino, (1981) Ind.App., 419 N.E.2d 978; however, the non-breaching party is not entitled to be placed in a better position than he would have been if the contract had not been broken. Irving v. Ort, (1957) 128 Ind.App. 225, 146 N.E.2d 107.
Colonial hand wrote in its purchase sale agreement that it would fix the leaking roof and admitted as much at trial and in its brief. Under Indiana law, courts construe a printed form most strongly against the person who prepares it. Rieth-Riley Construction Co., Inc. v. Auto-Owners Mutual Insurance Company, (1980) Ind.App., 408 N.E.2d 640. Colonial prepared the form contract and specifically agreed to repair the roof. We need only determine whether the extent of damage that flowed from the leaking roof was within the scope of the evidence and consider the issue of mitigation of damages. To recover damages for a breach of contract, plaintiff must show that those damages flowed directly and naturally from the breach. Indiana Tri-City Plaza Bowl, Inc. v. Estate of Glueck, (1981) Ind.App., 422 N.E.2d 670. In general, no particular degree of mathematical certainty is required in awarding damages. Indiana Bell Telephone Company, Inc. v. O'Bryan, (1980) Ind.App., 408 N.E.2d 178. The amount of damages awarded must be within the scope of the evidence. Prudential Insurance Company of America v. Executive Estates, Inc., (1977) Ind.App., 369 N.E.2d 1117. Finally, the computation of damages, if supported by the evidence in the record, is strictly a matter within the trial court's sound discretion. Indiana University v. Indiana Bonding & Surety Company, (1981) Ind.App., 416 N.E.2d 1275; Smith v. Glesing, (1969) 145 Ind.App. 11, 248 N.E.2d 366.
In the case at bar, Gedert's estimate included the cost of repairing the roof and the damage caused by water leaking into the mobile home. As Berkhardt points out in her brief, if the testimony on the added cost of labor due to inflationary increases is included, the total cost of repairing the roof and resultant damage from Colonial's not having repaired the roof is $1,333.07, slightly more than the judgment award of $1,310.97. An awareness of general inflation and a constant depreciation and cheapening of money is within the zone of discretion given the trier of facts when assessing damages. State v. Daley, (1972) 153 Ind.App. 330, 287 N.E.2d 552. Under cross-examination, Berkhardt testified as to the extent of damages due to Colonial's failure to repair the roof as it had agreed in the contract:
"Q. How badly does that roof leak?
A. Well, ah, it leaks so bad that the fixtures completely hanging out of the ceiling now. Ah, when it started leaking I had, ah, I have a chihauhua and I thought that she was getting up on my bed and pottying and I knew she'd never done it before and I was laying there and watching TV one night and it was raining and, ah, my feet were getting wet. So I called the next day and I was informed to move my bed.
Q. Did you do that?
A. My bed was already against the wall as far as it would go.
Q. What'd you do? Put a bucket on it then?
A. Yes. I set pie pans under it.
Q. Is that the only place it leaked?
A. Ah, that day, yes. But when really downpours it leaks all the way from the living room, all the way down through the whole mobile home. And I set, have to set papers under it to keep...
To continue reading
Request your trial
-
In re Greives
...(D.C.Ind.1968), aff'd 407 F.2d 809 (7th Cir.1969), cert. den. 90 S.Ct. 71, 396 U.S. 826, 24 L.Ed.2d 77: Colonial Discount Corp. v. Berkhardt, 435 N.E.2d 65 (1st. Dist.Ind.App.1982). Ambiguities in "contracts of adhesion" which are standardized contracts imposed and drafted by parties of sup......
-
Chaffee v. Seslar, 17A03-0011-CV-418.
...of damages is a matter of defense with the burden on the party held liable to respond in damages." Colonial Disc. Corp. v. Berkhardt, 435 N.E.2d 65, 67 (Ind.Ct.App. 1982). Generally, the non-liable party must mitigate its damages, but the burden lies with the liable party to prove that the ......
-
Vaughn v. General Foods Corp.
...by the evidence in the record. First National Bank of New Castle v. Acra, 462 N.E.2d 1345, 1351 (Ind.App.1984); Colonial Discount Corp. v. Berkhardt, 435 N.E.2d 65 (Ind.App.1982); Indiana Bell Telephone Co. v. O'Bryan, 408 N.E.2d 178, 184 (Ind.App.1980); Friendship Farms Camps, Inc. v. Pars......
-
Persinger v. Lucas
...At trial, Persinger carried the burden of proving that Lucas unreasonably failed to mitigate damages. Colonial Discount Corp. v. Berkhardt (1982), Ind.App., 435 N.E.2d 65, 67. Accordingly, Persinger appeals a negative judgment. On appeal we will neither reweigh the evidence nor judge the cr......