Home Dev. Co. v. Arthur Jordan Land Co.
| Decision Date | 17 June 1935 |
| Docket Number | No. 14885.,14885. |
| Parties | HOME DEVELOPMENT CO. v. ARTHUR JORDAN LAND CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Hendricks Circuit Court; A. J. Stevenson, Judge.
Action by the Home Development Company against the Arthur Jordan Land Company. From a judgment for defendant, plaintiff appeals.
Reversed, with instructions.Archie Kahl, of Danville, and White & Jones, of Indianapolis, for appellant.
Johnson & Zechiel, of Indianapolis, for appellee.
The appellee was the owner of some vacant lots in the city of Indianapolis. The appellant was a contractor engaged in the erection of houses. The appellant was desirous of erecting houses upon appellee's vacant lots and appellee desired to have them erected, expecting thereby to accelerate the sale of its lots. On March 18, 1926, for the purpose of accomplishing their mutual aims, appellant and appellee entered into a written contract. This action involves a determination of the respective rights of the parties under that contract.
Its terms, in so far as it is necessary to set them out for the purpose of this opinion, may be summarized as follows: Appellant was to furnish plans, specifications, material, labor, and superintend the construction of and construct a house on a lot to be selected by appellee, the same to cost approximately $4,000, including supervision charge, but not to exceed the total cost agreed upon, and guaranteed by appellant for the plans and specifications furnished, work on the first house to begin at once and to be completed on or before ninety days, appellee was to reimburse appellant for cost of the plans and specifications, material and labor furnished in the construction of the house on or before 31 days after receipt of an affidavit from appellant that all bills for same had been paid, and 15 per cent. on the cost of the improvement as compensation for services rendered in superintending its construction, to be paid when the house and lot was sold and the initial payment of the purchase price was made. When the house was completed appellant was to have the exclusive right to sell the house and lot for a period of 90 days from that date at 150 per cent. of the cost of the improvement, the purchaser to assume payment of all municipal and other public liens payable after March 15, 1926; the initial cash payment for the purchase of the house and lot to be not less than $1,000. For making and closing any such sale, appellee was to pay appellant a commission of 5 per cent. of the purchase price for the house and lot, to be paid when the initial cash payment of such purchase price was made. As soon as the first house was sold, a second one was to be constructed on the same terms and conditions controlling the construction of the first one, and if appellant secured contracts for the sale of other houses, it had the right to begin construction thereof on the same terms. Appellant had the exclusive right to construct and sell houses on the lots described in the contract for a period of one year from the date of the contract. In case at least one house was not sold within six months from the date of the contract, appellee reserved the right to cancel it at any time thereafter, unless a house was sold by the appellant before notice of cancellation was given by the appellee.
After entering into the contract appellant erected a house upon a lot selected by appellee. It was erected in accordance with the terms and conditions of the contract in all respects, and was approved and accepted by appellee. The total cost of erection of the house was $3,248.19 which amount was fully paid by appellee. During the 90-day period following the completion of the house, appellant endeavored to make a sale of the house and lot, but was unsuccessful. Following that period, appellant continued its efforts to make a sale, but was not able to do so. November 30, 1926, appellee sent appellant a letter which, omitting the caption and signature, was in the following language:
“On account of your failure to sell within the time specified in our contract of March 18, 1926, the house which you built at 6106 N. Park Ave., we now notify you that we hereby cancel said contract of March 18, 1926, in accordance wih paragraph ten (10) thereof.
“We wish to thank you for the business like way in which you performed your part of our agreement and feel that we have a well built house to dispose of and that every dollar we spent is represented in true value.”
November 10, 1926, appellee conveyed the house and lot to Butler University as a gift to that institution. Fifteen per cent. of the cost of the house amounted to $487. Appellant made demand upon the appellee for payment of this sum before the commencement of this action, which was refused. No part of this commission was ever paid. After the gift of the house and lot to Butler University by appellee, appellant brought this action to recover the commission alleged to be due it under the terms of the contract, which was made an exhibit to the complaint, and upon which the right of action was predicated. The complaint was in one paragraph. Appellee filed an answer in two paragraphs, the first was a general denial; the second, to which a reply in general denial was filed, was upon the theory of confession and avoidance. On these issues the cause was tried to the court without a jury, which made a special finding of facts, the substance of which is above set out, and stated its conclusions of law thereon in favor of appellee, in accordance with which judgment was rendered. The appellant properly excepted to each conclusion of law, and appeals to this court assigning as error for reversal, that the trial court erred in each of its conclusions of law.
[1][2][3][4] These exceptions admit, for the purpose of the exceptions only, that the facts upon which the conclusions are based have been fully and correctly found, limited, however, to the facts found within the issues formed by the pleadings. The special finding of facts must contain all the facts necessary to entitle the party to a recovery in whose favor the conclusions of law are found. On appeal, all facts not embraced within the special finding will be deemed as not proven by the party having the burden of the issue, and the failure to find a fact essential to a recovery will be regarded as a finding against the party having the burden of proving the same. There was no motion for a new trial, so the truth of the facts contained in the special finding are not controverted. We examine the record in the instant case with the above precepts in mind.
It is agreed by both the parties that their respective rights are dependent upon the construction to be placed on the contract into which they entered.
In support of the conclusions of law, appellee insists that in order for appellant to recover it was necessary for it to secure a finding of fact to the effect that there was a guaranteed price for the construction of the house agreed upon, and that the cost thereof, together with the commission to be paid appellant, did not exceed that amount. We think that this contention is without merit. Whether or not this was a fact necessary to be found under the issues tendered, in order to entitle the appellant to recover, it is not necessary for us to decide. It is found as an ultimate fact that the house was erected in accordance with the terms and conditions of the contract and in all things accepted and approved by the appellee, that the total cost of construction, to wit, $3,248.19, was paid by it, and that appellant's commission was $487. The special finding of facts, construed as a whole, show conclusively that this phase of the contract was fully complied with.
The contract in its entirety is set out in finding No. 1, and the letter heretofore incorporated in the résumé of facts is set out in finding No. 6. It is true...
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