Czeck v. Van Helsland
| Decision Date | 31 October 1968 |
| Docket Number | No. 20678,No. 2,20678,2 |
| Citation | 241 N.E.2d 272,143 Ind.App. 460 |
| Parties | Raymond CZECK, Geraldine Czeck, Appellants, v. Edward F. VAN HELSLAND, Weltha Van Helsland, the Abstract Company of St. Joseph County, Inc., Horace B. Clarke, Appellees |
| Court | Indiana Appellate Court |
John W. Montgomery, Montgomery & Zimmerman, South Bend, for appellants.
Joseph G. Ettl, South Bend, Blachly & Tabor, Valparaiso, Horace B. Clarke, South Bend, for appellees.
This is an action brought by the appellants against the appellees, Van Helslands, to recover liquidated and actual damages for said appellee's alleged breach of contract; and against appellee The Abstract Company of St. Joseph County, Inc. as escrow agent; and against appellee, Clarke, its agent.
The contract in question provided for the construction of two roads and provided further that in the event of delay in completion of the roads that the seller-appellees, Van Helsland, would pay liquidated damages in the amount of $5 per day for every day after a certain date. It was stipulated by the parties that the number of days which had elapsed since the date of breach was 1,347 with regard to the East Road and 1,211 with regard to the West Road. Seven hundred dollars was deposited with appellee Clarke to be held in escrow, and to be used for the payment of liquidated damages, if necessary.
The court found for the appellants in the sum of $3,000 and this appeal follows. ('Liquidated damages' amounted to over $12,000 at the time of trial.)
Appellants urge the following specifications of error in their motion for new trial:
a) Error in the assessment of recovery, in this, that the amount is too small.
b) The decision of the court is not sustained by sufficient evidence.
c) The decision of the court is contrary to law.
Appellants claim they were entitled to two things--(1) a road, and (2) a road at a certain time. Thus, the liquidated damages clause, they contend, only applies to number (2), and they are entitled to the actual damages for their damages relating to number (1), plus the liquidated damages relating to number (2).
The major point of contention is whether the contract provided for liquidated damages or a penalty.
The pertinent sections of the contract between the parties are set forth below:
'3. * * * The seller agrees to pay as liquidated damages the sum of $5 per day to the buyer for each day accruing after the respective completion dates * * *
4. The seller further covenants and agrees to pay as liquidated damages the sum of $5 per day to the buyer for each day beyond 4 years from the date required for the completion * * *.
5. It is further understood and agreed by the parties hereto that said escrow and liquidated damages are not in lieu of but supplemental to the rights and remedies of the buyers, and are not deemed as a waiver of any other rights or remedies available to the buyer * * *'. (emphasis added.)
Second, even if the contract provided for a penalty, appellants contend they are entitled to actual damages which are, they claim far in excess of the damages awarded.
We find appellants' contention is without merit.
We are tolerant of provisions within contracts which provide for liquidated damages. However, as we stated in Beiser v. Kerr (1939), 107 Ind.App. 1, 20 N.E.2d 666,
...
To continue reading
Request your trial
-
Kelly v. Marx, 96-P-0114
...328 (Fla.1991) *; Fickling & Walker Co. v. Giddens Constr. Co., 258 Ga. 891, 897-898, 376 S.E.2d 655 (1989) *; Czeck v. Van Helsland, 143 Ind.App. 460, 463, 241 N.E.2d 272 (1968); Anne Arundel County v. Norair Engr. Corp., 275 Md. 480, 494, 341 A.2d 287 (1975); Roland v. Kenzie, 11 Mich.App......
-
Skendzel v. Marshall
...as penal rather then compensatory. See Melfi v. Griscer Industries, Inc. (1967), 141 Ind.App. 607, 231 N.E.2d 54; Czeck v. Van Helsland (1968), 143 Ind.App. 460, 241 N.E.2d 272. Under the facts of this case, a $21,000 forfeiture is clearly The authors of American Law Reports have provided a......
-
School City of East Chicago, Ind. v. East Chicago Federation of Teachers, Local No. 511, A.F.T.
...v. Marshall (1973), 261 Ind. 226, 301 N.E.2d 641, cert. den. 415 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476; Czeck v. Van Helsland (1968), 143 Ind.App. 460, 241 N.E.2d 272. Accordingly, we must conclude that the arbitrator's purported award of punitive damages was void and, thus, subject to co......
-
Art Country Squire, LLC v. Inland Mortg. Corp.
...to be asserted, [we] will treat the sum as a[n] [unenforceable] penalty rather than as liquidated damages." Czeck v. Van Helsland, 143 Ind.App. 460, 241 N.E.2d 272, 274 (1968) (quoting Beiser v. Kerr, 107 Ind.App. 1, 20 N.E.2d 666 (1939)). Generally, we look more favorably upon a liquidated......