Conner v. Fisher, 20036
| Decision Date | 04 December 1964 |
| Docket Number | No. 20036,No. 2,20036,2 |
| Parties | John W. CONNER, Belva Conner, Appellants, v. Oheron FISHER, Appellee |
| Court | Indiana Appellate Court |
R. Ronald Calkins, Indianapolis, Coates, Hatfield & Calkins, Indianapolis, for appellants.
Thomas E. Garvin, Indianapolis, for appellee.
Appellants duly instituted this action in Room 5 of the Superior Court of Marion County against appellee seeking cancellation of a conditional sales contract for the sale of certain real estate in the city of Indianapolis, possession of said real estate, and damages for the withholding thereof.
The complaint, in material substance, alleges that on April 11, 1960, appellants and appellee entered into a written contract, by the terms of which appellants agreed to sell and appellee agreed to buy said real estate at and for a consideration of $15,500.00, payable $1900.00 cash in hand, and $130.00 per month, on the 11th day of each successive month, beginning May 11, 1960, with six per cent (6%) interest, computed semi-annually, in advance, on January 1 and July 1, upon the unpaid sum at the beginning of each six months period; that appellee paid appellants in accordance with the terms of the contract to and including the payment due September 11, 1960; that appellee failed and refused to pay the payments due under the contract on [136 INDAPP 513] October 11, November 11 and December 11, 1960; that the contract provides that appellants may cancel the contract and take possession of the real estate, without notice, if appellee 'becomes delinquent for a period of sixty days'; that said contract also provides that failure of appellee to make the monthly payments when due entitled appellants to retain the payments made as 'liquidated damages'; that since October 11, 1960 appellee has held possession of the real estate 'contrary to said contract.'
Appellee answered the complaint and filed a counterclaim against appellants, the gist of said answer and counterclaim being that subsequent to April 11, 1960 appellee made payments at irregular times and in varying amounts and such payments were 'many times' delinquent when paid; that said delinquent payments were received and retained by appellants without complaint as to the delinquency and without serving any notice upon appellee of appellants' intention to insist upon the forfeiture of appellee's rights under the contract; that by accepting said delinquent payments appellants led appellee to 'honestly believe that they would not forfeit her rights under the contract' and that by their acts appellants 'waived their rights to possession of the real estate' and 'it is against equity and good conscience for them to have caused' appellee 'to have been ejected from the property * * * when she had paid them over * * * ($2,800.00) * * * between April 11, 1960 and January 6, 1961, the date of her eviction from said premises.' Appellants' answer to the counterclaim closed the issues.
Upon trial to the court, the latter found against the appellants on their complaint and that appellee was entitled to recover against appellants on appellee's counterclaim[136 INDAPP 514] in the sum of $1850.00 and costs. Agreeable judgment followed.
By their overruled motion for a new trial appellants present the specifications thereof that there was error in the amount of recovery in that the amount is too large; the decision is not sustained by sufficient evidence; and that the decision is contrary to law.
The written contract, among other things, provided: 'the time of payment shall be of the essence of this contract' and:
(Emphasis supplied.)
The evidence without conflict shows the amounts and dates of payments made by appellee as follows:
April 11, 1960 $1,900.00 Down payment
[136 INDAPP 515] May 13, 1960 20.00 Taxes and Insurance
May 31, 1960 25.00 Principal and Interest
June 9, 1960 20.00 Taxes and Insurance
June 17, 1960 130.00 Principal and Interest
July 12, 1960 130.00 Principal and Interest
Jury 12, 1960 20.00 Taxes and Insurance
August 27, 1960 80.00 Principal and Interest
August 27, 1960 20.00 Taxes and Insurance
September 21, 1960 20.00 Taxes and Insurance Appellee admits that she did not pay the installments in the amounts and at the times provided in the contract, but contends that 'appellants herein consistently accepted payments from the appellee at irregular times or intervals and in irregular amounts and permitted the back or delinquent payments to remain unpaid.' Appellee then urges that appellants' acceptance of such payments at irregular times and in irregular amounts 'waives the provisions of the contract making the time of payment of the essence thereof, and casts upon the * * * appellants herein, the duty to give definite and specific notice to * * * appellee herein that appellants * * * have a present intent to make full use of the forfeiture provisions in the contract, unless the delinquent installments are paid within a specified but reasonable time.'
It is admitted by appellants that no such notice was given appellee. Appellants' position is that the payments were made by appellee and accepted by appellants within the 'sixty day grace period' provided in the contract and, therefore, appellants cannot be held to have waived the contract provisions or to have been required to give the notice insisted upon by appellee.
[136 INDAPP 516] The contract acknowledges receipt by appellants of the cash sum of $1900.00 paid by appellee at the time of the execution of the agreement and further provides:
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