Haney v. Denny

• Decision Date: 13 November 1963
• Docket Number: No. 19769,No. 2,19769,2
• Citation: 193 N.E.2d 648,135 Ind.App. 317
• Parties: Troy H. HANEY, Appellant, v. Gladys M. DENNY, Executrix of the Estate of Noble F. Denny, Deceased, Appellee
• Court: Indiana Appellate Court

Page 648

193 N.E.2d 648

135 Ind.App. 317

Troy H. HANEY, Appellant, v. Gladys M. DENNY, Executrix of the Estate of Noble F. Denny Deceased, Appellee.

No. 19769.

Appellate Court of Indiana, Division No. 2.

Nov. 13, 1963.

Sidney A. Horn, Paul E. Blackwell, Indianapolis, Eugene B. Burns, Lebanon, for appellant. Rochford, Blackwell & Rochford, Indianapolis, of counsel.

Ben M. Scifres, of Scifres & Hollingsworth, Roscoe Hollingsworth, Lebanon, for appellee.

MOTE, Chief Justice.

Appellant assigns as error the overruling of his motion for a new trial and contends that the decision of the trial court is (1) not sustained by sufficient evidence, and (2) is contrary to law, which he presents and argues collectively.

In the interest of brevity, we have adopted the concise statement of facts in the case as set forth in appellee's brief, as follows:

'1. Noble Frank Denny and Gladys May Denny owned certain real estate in Lebanon, Indiana, on which there was a restaurant known as 'Beacon Inn' and a service station leased to Sinclair Refining Company. The Dennys operated the restaurant and owned the equipment.

'2. On April 16, 1955, the Dennys leased said real estate to the appellant, Troy H. Haney, and assigned to Haney all their right, title and interest in the Sinclair lease for the duration of the Haney lease.

'3. By the terms of the lease, Haney paid the defendants a rental of $10,000.00 per year, and was given an option to buy said property for $85,000.00, said option being non-assignable and it could not be exercised before the year 1960, and further provided that in case of the sale of said property the Dennys would pay to Haney the sum of $4400.00 which Haney had expended as a part of the cost in acquiring said lease.

'4. That the State of Indiana, under eminent domain proceedings, condemned said real estate on January 9, 1958, and took possession on May 1, 1958.

'5. Appraisers were appointed by the Court to fix the damages of all parties concerned, to-wit, the Dennys, as the owners in fee simple; Sinclair Refining Company, lessee; and Haney, the appellant, as a lessee. That said appraisers duly appraised the interests involved and fixed the damages for the appellant, Haney, in the amount of $39,642.65. The appraisers fixed the fair market value of the leasehold interest of the appellant at $4400.00; his interest in improvements, which he had made on the real estate, in the amount of $5,293.36, and the fair market value of the furniture, fixtures and equipment owned by the appellant, or the damage to be sustained by him as a result of the taking, in the amount of $8,754.65, and other damages for Haney, in the amount of $21,194.64.

'6. Exceptions were filed by all the parties and the condemnation case was venued to Montgomery County.

'7. Noble Frank Denny died December 13, 1958, and, subsequent thereto, the appellant filed Claims against the Denny Estate.

'8. That said condemnation case, State of Indiana vs. Gladys May Denny, Executrix of the Estate of Noble Frank Denny, deceased, et. al., No. 32172, went to trial in the Montgomery Circuit Court, and, after several days of hearing, the State of Indiana withdrew its objections.

'9. Since all the parties involved had drawn down the money paid into the Clerk's Office of the Boone Circuit Court by the State of Indiana, Judge Sommer, of Montgomery Circuit Court, held that the State had a right to withdraw its objections, and rendered judgment in favor of all of the parties involved in the amounts fixed by the Court's appraisers. The appellant appealed from said judgment and said appeal is now pending in the Supreme Court of Indiana under Cause No. 30070. The claims the appellant filed against the estate of Noble Frank Denny were consolidated and tried under Cause No. 21472 in the Boone Circuit Court and judgment for the appellee was entered June 9, 1961, from which judgment this appeal is taken.'

The lease of real estate with option to purchase here involved, omitting the detailed description and other formal parts, is as follows:

'EXHIBIT A

'LEASE

'THIS AGREEMENT, made and entered into in duplicate this 16th day of April, A.D. 1955, by and between Noble F. Denny and Gladys M. Denny, his wife, of 529 Esplanande Street, Lebanon, Indiana, Parties of the First Part, hereinafter referred to as 'Lessor', and Troy Haney of 5102 North Pennsylvania Street, Indianapolis, Indiana, Party of the Second Part, hereinafter referred to as 'Lessee'.

'WITNESSETH:

'1. Lessor, for and in consideration of the rents, covenants and agreements hereinafter mentioned, reserved and conditioned on the part of Lessee to be maintained, paid, kept and performed, has rented and leased and by these presents does hereby rent and lease unto Lessee, their successors and assigns, the following described premises, situate two-tenths ( 2/10) miles South of the City of Lebanon on State Road #39, Highway, State of Indiana; said premises being further described as: * * *

'To Have and to Hold the above rented and lease premises with the buildings, improvements and fixtures, and such furniture, restaurant equipment, pumps, tanks, air compressors, appliances, pipe lines, unloading racks and unloading facilities as may now or hereafter be located or placed thereon by Lessor, including without restricting thereto the equipment list attached hereto and marked Exhibit A, and all rights, privileges and appurtenances thereunto belonging, together with any and all permits, whether village, city, county or State, unto Lessee, their successors and assigns, for a term of nine and one-half (9 1/2) years from the 16th day of April, A.D. 1955. Lessor hereby covenants and agrees to place Lessee in possession of the demised premises and improvements at the beginning of and for said term, Lessor hereby gives and grants to Lessee the exclusive option and privilege of extending this lease from year to year for five successive yearly periods in addition to the nine and one-half year term above specified. Lessee may exercise its option at the end of the term above specified and at the end of each yearly period by remaining in possession and by paying the rent as herein provided. Lessee shall have the privilege of terminating this lease at the end of the nine and one-half year term as above specified.

'2. Beginning with April 16, 1955 and at the beginning of each six month period, thereafter, during the continuance of this lease, Lessee agrees to pay to Lessor the sum of $5,000.00 in advance for said respective six months period during the term of this lease. All rentals shall be payable to Noble F. Denny and Gladys M. Denny, and may be paid by check mailed to Lessor at Lebanon, Indiana, or to such person or persons as may be designated in writing by Lessor to receive the same receipt of above payment is hereby acknowledged.

'3. If at any time during the term hereof Lessor shall be indebted to Lessee on any account whatsoever, Lessee shall have the right to apply any accrued rental upon said unpaid indebtedness of Lessor, and Lessor agrees that the amount so applied shall constitute rental payment hereunder.

'4. Lessor covenants and agrees to and with Lessee that the rents being paid in the manner and at the time prescribed, and the covenants and conditions and warranties herein being all and singular kept, fulfilled and performed, Lessee shall lawfully and peaceably have, hold, possess, use and occupy the premises and property hereby leased during the term hereby granted, or any extension thereof, without any hindrance, disturbance or molestation from Lessor; and Lessee hereby warrants and defends to Lessee against the lawful claims of all persons whomsoever the premises and property hereby granted. Lessor further covenants and agrees that, without Lessee's consent, it will not use or permit to be used for the storage, sale, distribution, or advertisement of petroleum products any premises which may be or become owned or controlled by Lessor adjacent to the premises covered hereby.

'5. During the term of this lease, Lessor covenants and agrees to pay all general special real estate property taxes but the same shall be limited to real estate property taxes only, Lessee shall pay all other taxes on stock owned by Lessee and on all equipment and personal property owned by Lessor and covered by this lease as well as all utilities charges, special assessments of any kind or character against said real estate or the property covered by this lease and all other charges, assessments or taxes arising out of the operation of business as said location by Lessee.

'6. Lessee agrees at his own expense to maintain said premises and the improvements, equipment and personal property thereon hereby leased, including driveways, and approaches in as good condition as the same are now in at the time of the beginning of this lease. Lessee further agrees to replace and repair any of the demised premises or personal property of Lessor, if, as and when such repairs and replacement is needed. With respect to personal property and equipment of Lessor when the same shall be replaced, such replacement shall be and become the property of Lessor subject to the terms of this lease as if the same has been property originally leased herein.

'In the event of destruction of or damage to the demised premises or personal property caused by fire or action of the elements, if Lessor fails to rebuild or repair within 60 days after such destruction or damage, Lessee shall have the option of terminating this lease by notice to Lessor and upon such termination, Lessee shall be relieved from all obligations hereunder thereafter.

'7. Lessee shall have the right to make proper connections with any and all water, gas and sewer lines and pipes on the demised premises, and may continue to use and service thereof during the term of this lease.

'8. In the event Lessee shall be in default in the payment of rentals hereunder, or otherwise, and shall remain in...