Kenefick v. Shumaker

• Decision Date: 29 May 1917
• Docket Number: No. 9283.,9283.
• Citation: 64 Ind.App. 552,116 N.E. 319
• Parties: KENEFICK et al. v. SHUMAKER et al.
• Court: Indiana Appellate Court

64 Ind.App. 552

116 N.E. 319

KENEFICK et al.

v.SHUMAKER et al.^*

No. 9283.

Appellate Court of Indiana, Division No. 1.

May 29, 1917.

Appeal from Circuit Court, La Porte County; James F. Gallaher, Judge.

Action by William H. Kenefick and others against Frederick J. Shumaker and others. From a judgment denying a recovery, plaintiffs appeal. Reversed, with instructions.Sutherland & Smith, of La Porte, for appellants. Worth W. Pepple, of Michigan City, and H. W. Sallwasser, of La Porte, for appellees.

BATMAN, J.

This is an action by appellants against appellees to recover liquidated damages for the breach of a contract for the sale of real estate. The complaint is in a single paragraph, demanding a judgment for $1,000 for breach of such contract, which was answered by a general denial. Appellees filed a counterclaim, demanding a judgment for $3,000 for a breach of the same contract, which was answered by general denial. Trial by the court. A special finding of facts was made, and conclusions of law were stated thereon, that neither the appellants nor appellees were entitled to recover, and that each party should pay their own cost. Appellants duly excepted to the first conclusion of law, that they were not entitled to recover on their complaint. Judgment was rendered in accordance with the conclusions of law. Appellants filed their motion for a new trial on the single ground that the decision of the court is contrary to law. This motion was overruled; and exceptions reserved by appellants. Appellants assigned several errors, but have waived all except the fourth and fifth, relating to the action of the court in stating its conclusion of law No. 1 and in overruling their motion for a new trial.

The following is a substantial statement of so much of the special finding of facts as is deemed necessary for the determination of the questions presented on appeal: That on the 14th day of January, 1914, appellants William H. Kenefick and Mary Kenefick were the owners of certain real estate in Michigan City, Ind., on which there were two buildings, one occupied as a dwelling house, and the other as a saloon; that on said date they entered into a written contract with appellees for the sale of said real estate to them; that said contract provided, among other things, that the said appellants should convey said real estate to appellees, by a good and sufficient warranty deed, on or before the 15th day of February, 1914, on payments being made as therein provided; that the said appellants should furnish appellees, on or before the 1st day of February, 1914, a complete abstract of title to said premises, brought down to date, certified to by a competent abstractor, showing the title to said premises in appellants, and allow appellees a reasonable opportunity to have the same examined; that possession of said premises was to be given appellees on or before the 1st day of February, 1914; that the purchase price was to be $6,000, to be paid as follows: $200 in cash on the execution of such contract, $1,800 on February 15, 1914, and balance by note, secured by mortgage on said real estate, on receipt of deed by appellees; that time should be of the essence of such contract; and that either party failing to comply with the provisions thereof should forfeit and pay the other party the sum of $1,000, which sum was fixed and agreed upon as liquidated damages for such default; that for the same consideration appellant James P. Kenefick, who also joined in said contract, agreed to sell and transfer to appellees a certain liquor license, and the furniture and fixtures in such saloon building; that appellants delivered the possession of said saloon building to appellees on the 17th day of January, 1914, who entered into possession of the same and operated the business therein until the 15th day of April, 1914; that at the time of the execution of such contract a tenant of appellants occupied said dwelling, and by reason of such fact appellants were unable to tender possession thereof to appellees until the 20th day of February, 1914, on which date appellees took possession thereof, and continued to occupy the same until the 15th day of April, 1914; that prior to said date appellees had no possession of said dwelling house, except they were permitted to use a telephone therein; that on the 26th day of January, 1914, appellants tendered to appellees an abstract of title to said premises, duly certified by a competent abstractor of La Porte county, Ind., showing title in appellants William H. and Mary Kenefick, the certificate to said abstract being dated January 24, 1914; that at the time of said tender of said abstract appellees refused to accept the same, or take the same to have it examined, but by their directions left the same with appellants; that appellants thereafter repeatedly tendered said abstract to appellees up to the 8th day of April, 1914, but they did not accept the same or take the same until said last-named date; that on the 5th, 11th, and 15th days of February, 1914, appellants tendered appellees a warranty deed for said premises and said abstract of title, and demanded that they complete the purchase in accordance with the terms of said contract, and that appellees refused to accept said deed or abstract and complete such purchase, but stated they would do so later, and requested appellants to hold the same until a later date; that on said 8th day of April, 1914, appellants again tendered said abstract and deed to appellees, and requested that they accept the same and pay the balance of the purchase price; that thereupon, by their directions, said abstract was sent to a certain Mr. Sallwasser, whom they designated as their attorney, for examination; that thereafter, on the 10th day of April, 1914, their said attorney notified appellants that said abstract did not contain any certification as to taxes and special assessments of the corporation of Michigan City, Ind., or as to the condition of the judgment record of the superior court at said city; that appellants thereupon caused search to be made of said records by said abstractor, and a certificate thereof to be attachedto said abstract, and then delivered the same to appellants' said attorney on the 13th day of April, 1914; that there were some defects in the title as shown by said abstract, which were not of a serious nature and did not affect the possessory title of appellants; that arrangements were made by appellants and appellees to meet at the office of appellees' said attorney on the 14th day of April, 1914, and complete such sale and purchase, but appellees did not keep said engagement, or complete said purchase under said contract, on said date or any day thereafter; that appellants on the 15th day of April, 1914, served a written notice on appellees demanding that they complete their said purchase of said premises, tendered them a deed therefor, demanded payment of the balance of the purchase price, and notified them that, unless they completed said purchase by the 20th day of April, 1914, they would sue on said contract; that appellees did not complete said purchase, nor offer to do so, but vacated said premises on the 15th day of April, 1914, refused to carry out said contract or complete said purchase, and notified appellants they would not do so, on account of the condition of the abstract, in that it did not show a clear title; that appellees have paid $200 of said purchase price, but the remainder thereof has not been tendered or paid; that appellees took possession of said saloon furniture and fixtures on the 17th day of January, 1914, and on said date appellee Frederick J. Shumaker took possession of all the liquors in said saloon, which appellants gave to said appellee free of cost; that appellant James P. Kenefick complied with the terms of said contract on his part to be performed; that appellants did not derive any revenue from the buildings on said premises for six months from the time of making said contract; that the reasonable rental value of said premises is $40 per month; that appellant James P. Kenefick sold the liquor license mentioned in said contract in June, 1914, for $750; that the fair cash market value of said premises without the liquor license on the 15th day of April, 1914, when appellees vacated the same, was $4,000.

[1] Appellants contend, in effect, that the facts found by the court show the existence of the contract sued on, performance on their part, nonperformance on the part of appellees, and that by reason thereof they have suffered substantial damages. Such facts, if found, would entitle appellants to recover. Roder v. Niles (1916) 111 N. E. 340. Appellees, on the other hand, hold to the contrary, and urge two propositions in support of their contention: First, that appellants, having alleged full performance of the contract in suit on their part, cannot recover on proof of a waiver; and, second, that the special findings show a failure on the part of appellants to comply with such contract in regard to the possession of such premises, and the furnishing of an abstract of title thereto.

[2] Appellees, in support of their first proposition, seek to invoke the well-established rule that, where a party seeks to recover damages for the breach of a contract, he must allege and prove a compliance with the contract on his part, or facts showing a proper excuse for not having done so. Collins v. Amiss (1902) 159 Ind. 593, 65 N. E. 906;Korbly v. Loomis (1909) 172 Ind. 352, 88 N. E. 698, 139 Am. St. Rep. 379, 19 Ann. Cas. 904;McFarlan, etc., Co. v. Connersville, etc., Co. (1911) 49 Ind. App. 318, 96 N. E. 400. This rule, however, does not apply in a case where the condition not performed has been waived by the opposite party. It has been, in effect, so held in the recent case of Union Federal League v. Sweeney (1916) 184 Ind. 378, 111 N. E. 305, decided by the Supreme Court. In that case the court in...