Kimmel v. Cockrell

• Decision Date: 15 October 1974
• Docket Number: No. 1--274A22,1--274A22
• Citation: 317 N.E.2d 449,161 Ind.App. 659
• Parties: David L. KIMMEL and 1 Mary L. Kimmel, Appellants (Defendants Below), v. William F. F. COCKRELL and Twylah F. Cockrell, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 449

317 N.E.2d 449

161 Ind.App. 659

David L. KIMMEL and ¹ Mary L. Kimmel Appellants (Defendants Below), v. William F. F. COCKRELL and Twylah F. Cockrell, Appellees (Plaintiffs Below).

No. 1--274A22.

Court of Appeals of Indiana, First District.

Oct. 15, 1974.

Thomas J. Carroll, George A. Cottrell, Carroll & Cottrell, Indianapolis, for appellants.

Lewellyn H. Pratt, Applegate & Pratt, Bloomington, for appellees.

LOWDERMILK, Judge.

Plaintiffs-appellees (Cockrells) commenced this action for possession of real estate on March 27, 1973. Defendants-appellants (Kimmels) answered and filed a counterclaim. Trial was had to the court on August 9, 1973, with judgment being entered for Cockrells on their complaint and against Kimmels on their counterclaim. Kimmels timely filed their motion to correct errors which was by the court overruled.

On July 1, 1969, Kimmels entered into a written agreement with Cockrells to lease a certain farm in Martin County, Indiana, and a residence thereon. Said lease was to terminate on December 31, 1975, after which Kimmels had the right to purchase the farm outright or, alternatively, to purchase the farm on an installment contract. A portion of the land in question was to be used as soil bank acreage with Cockrells to receive payment from the United States Department of Agriculture, pursuant to a soil bank agreement.

On January 28, 1972, Cockrells sent a notice of forfeiture and demand for possession of the real estate to Kimmels, wherein they alleged failure to pay rent, failure to pay taxes, commission of waste, and failure to protect Cockrells' interest in the soil bank agreement. No action was subsequently taken in regard to this notice of forfeiture.

On January 13, 1973, Cockrells sent a second notice of forfeiture and demand for possession to the Kimmels. This notice charged that Kimmels had violated the terms of the lease in the following particulars: failure to pay $450.00 in rental payments, causing unnecessary expense to Cockrells by reason of checks drawn on insufficient funds tendered by Kimmels, causing waste to be committed on the property, and failing to protect Cockrells' interest in the soil bank agreement, which resulted in the loss of $366.00 by Cockrells.

On March 5, 1973, Kimmels, through their attorney, tendered a check to Cockrells in the amount of $783.60 which was to pay all alleged arrearages, as well as the sum of $333.60 which Mr. Cockrell had lost under the soil bank agreement. Mr. Cockrell, on March 8, 1973, cashed the check for $783.60 and received full payment thereon. Subsequently on March 27, 1973, the complaint in this action was filed.

The first issue raised in this appeal is whether the judgment of the trial court is supported by sufficient evidence, specifically, whether there was sufficient evidence to show a breach of the lease agreement.

Kimmels contend that Cockrells failed to prove a breach of the lease agreement in that no cure letter was sent to them after any alleged default and prior to any action for forfeiture of the lease. Kimmels also contend that even if a cure letter was sent, that Cockrells failed to prove that Kimmels did not, in fact, cure any alleged breaches. Finally, Kimmels contend that any breach in regard to alleged arrearages was waived by the actions of Cockrells.

Item 7 of the lease agreement provides, in pertinent parts, as follows:

'If said rent, or any part thereof, shall at any time be in arrears and unpaid, and without any demand being made therefor or if said lessee, or his assigns, shall fail to keep and perform any of the covenants, agreements or conditions of this lease, on his part to be (kept and performed), and such default is not cured within thirty (30) days after written notice from lessor setting forth the nature of such default, . . .'

Cockrells have urged that the above item in the lease does not require any notice prior to declaring of a forfeiture in the event of nonpayment of rent. It is Cockrells' position that no notice was necessary where rent is to be paid in advance and the tenant fails to pay such rent, and relies on IC 1971, 32--7--1--7 (Burns Code Ed.).

It is our opinion that the parties to this lease set up a more stringent standard than that required by IC 1971, 32--7--1--7 supra, and that Cockrells were required under the lease to send notice to the Kimmels stating any default of the lease agreement and allowing Kimmels thirty days within which to cure such default. However, it is also our opinion that the notice of forfeiture and demand for possession sent to Kimmels on January 13, 1973, which succeeded and extinguished the first notice, substantially complies with the terms of the lease. The complaint in this cause alleged that Kimmels had been notified, pursuant to the notice of forfeiture and demand for possession discussed above and that Kimmels had failed to correct the violations therein specified and continued in default of the terms of the lease. The issue now rests on whether Cockrells sustained their burden of proof to establish the allegations of their complaint that Kimmels had failed to cure the alleged defaults.

The major disagreement between the parties concerned the payment of rent. Cockrells raintained that Kimmels, on many occasions, tendered as payment of rent checks which were drawn upon an account which had insufficient funds to cover the same. This, in itself would not be a direct violation of the agreement. The only allegations of breach which are pertinent to this appeal are those which were specified in the notice sent to the Kimmels on January 13, 1973. In said notice Cockrells specifically alleged that Kimmels were in arrears in the amount of $450.00. Thus, it was Cockrells' burden at trial to establish that Kimmels failed to cure the...