Harris Builders, Inc. v. Kopp, 1--773A125

• Decision Date: 10 June 1974
• Docket Number: No. 1--773A125,1--773A125
• Parties: HARRIS BUILDERS, INC., Defendant-Appellant, v. Thomas KOPP and Rose Mary Kopp, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 841

311 N.E.2d 841

160 Ind.App. 354

HARRIS BUILDERS, INC., Defendant-Appellant, v. Thomas KOPP and Rose Mary Kopp, Plaintiffs-Appellees.

No. 1--773A125.

Court of Appeals of Indiana, First District.

June 10, 1974.

Forrest H. Lanning, Robert E. Harris, Jeffersonville, for defendant-appellant.

Ronald R. Fifer, Fifer, Vogt, Hoodenpyl & Lanum, Jeffersonville, for plaintiffs-appellees.

ROBERTSON, Presiding Judge.

Defendant-appellant, Harris Builders, Inc. (Harris) brings this appeal from a judgment granting specific performance of a contract for sale of real estate to plaintiff-appellees, Thomas R. Kopp and Rose Mary Kopp (Kopps).

After trial before the court, judgment was entered in favor of the Kopps. Harris filed a motion to correct errors alleging that the judgment was contrary to the evidence in that the evidence showed that the Kopps had not performed their part of the contract and, therefore, were not entitled to specific performance. Harris specifically contended that the evidence showed that the Kopps:

1. Refused to pay for extras installed at their request;

2. Refused to pay closing costs;

3. Failed to obtain a loan; and

4. Failed to make the $1640 downpayment when the house was under roof.

Harris brings this appeal from the overruling of his motion to correct errors. For the reasons discussed below we affirm the judgment of the trial court.

In appeals challenging the judgment as contrary to the evidence this court conducts a limited review.

'This court cannot, and will not, weigh the evidence; that was the duty of the trial court, who saw and observed the witnesses on the stand, took into consideration their truthfulness, their bias and interests in the case, and was in a better position to understand the evidence, draw inferences therefrom and determine the truth . . ..'

Pontious v. Littleton (1970), Ind.App., 255 N.E.2d 684, 691.

This court must accept the facts as found below if there is any evidence of probative value to sustain them. Cox v. Schlachter (1970), Ind.App., 262 N.E.2d 550; Central Ind. Ry. Co. v. Mikesell (1966), 139 Ind.App. 478, 221 N.E.2d 192; Haley v. Williams (1955), 125 Ind.App. 377, 123 N.E.2d 921. Moreover, even if the evidence as to certain facts is conflicting this court will consider only that evidence most favorable to the appellee with all reasonable inferences that may be drawn, from such evidence. Rigby v. Leister (1970), Ind.App., 261 N.E.2d 891; Cox v. Schlachter, supra.

The evidence most favorable to the appellees may be summarized as follows:

On April 11, 1972, the Kopps entered into a contract with Harris Builders, Inc. for the purchase of real estate and construction of a house thereon. The contract, drafted by Robert Harris, an attorney who is also president and owner of Harris Builders provided, in pertinent part, that:

1. The purchase price of the house and lot was $21,400;

2. The Kopps pay Harris a $500 good faith deposit;

3. The Kopps make an additional $1640 downpayment at the time the house was under roof;

4. The Kopps obtain a loan of $19,260 from Union Federal Savings in New Albany, Indiana; and

5. The Kopps pay closing costs at Union Federal.

The Kopps made the $500 good faith deposit and construction of the house began. Mr. Kopp was originally told by an agent of Harris Builders that the house would be completed by July. Based upon this, Mr. Kopp sold his mobile home in May and moved in with his mother. The house was still not completed in September when the Kopps moved into an apartment owned by Mr. Harris.

The Kopps, in accordance with the contract, offered to make the $1640 downpayment when the house was under roof. However, they were told by an agent of Harris Builders that this payment need not be made until the closing. The Kopps did not in fact tender this payment until December 9, 1972. This payment was accepted by a secretary of Harris Builders but later returned by Mr. Harris.

Although construction of the house was not complete, Harris allowed the Kopps to make changes in the house at their expense. Also, the Kopps were allowed to prepare to take possession of the house by installing a stove, refrigerator, and dishwasher, having the water turned on, arranging for telephone service, and purchasing insurance.

On December 7, 1972, the house was completed except for landscaping. Union Federal had approved the final draw on the construction loan and Kopp's assumption of that loan.

On December 8, Kopp met with Harris to discuss final problems concerning construction and purchase. Harris explained that it was necessary for Kopp to pay for 'extras' that had been added to the house at Kopp's request during construction. Kopp agreed and Harris promised to have an itemized bill for the extras by the following Monday, December 11.

On December 8, Harris wrote a letter to Kopp indicating that Harris was exercising his option to refund Kopp's downpayment and rescind the contract. Kopp received the letter on Monday, December 11. On Wednesday, December 13, Kopp went to Harris for the itemized bill of extras that Harris had promised. He was presented with a bill listing the purchase price at $24,212.23 and was further informed that an additional $500 over this price would be required. Moreover, Kopp was told that he would have to sign a new contract providing that the first contract was null and void and providing for sale on an 'as is' basis with 'absolutely no guarantee for any defects of material or workmanship.' Kopp refused to sign the new contract, but offered to close the sale pursuant to the original agreement. Upon Harris' refusal, the Kopps brought this action.

From the evidence most favorable to the appellees, we cannot say that the judgment of the trial court...