Kleen Leen, Inc. v. Mylcraine, 1-477A78

Citation174 Ind.App. 579,369 N.E.2d 638
Decision Date16 November 1977
Docket NumberNo. 1-477A78,1-477A78
PartiesKLEEN LEEN, INC., Appellant (Plaintiff below), v. Ervin E. MYLCRAINE, Appellee (Defendant below).
CourtCourt of Appeals of Indiana
Theodore L. Locke, Jr., Locke, Reynolds, Boyd & Weisell, Indianapolis, Kenneth L. Anderson, Woodward, Hobson & Fulton, Louisville, Ky., for appellant

Lawrence R. McTurnan, Bredell, Martin, McTurnan & Meyer, Indianapolis, for appellee.

ROBERTSON, Chief Judge.

Plaintiff-appellant, Kleen Leen, Inc. (Kleen Leen), appeals from the trial court's granting of a motion for judgment on the pleadings made by defendant-appellee, Ervin E. Mylcraine (Mylcraine).

In May, 1970 Kleen Leen, a division of Purina Foods, entered into a contract with Mylcraine, a farmer, for a lease of gilts and boars for which Mylcraine agreed to pay certain deposits and rentals. The contract provided that Kleen Leen would remain owners of the gilts and boars which were represented as being of "top quality."

After delivery, a dispute arose between the parties over the quality of the swine and unpaid rentals and deposits. A "Mutual Release Agreement (set out below) was executed in July, 1971. Thereafter, Mylcraine continued to use the leased breeding stock, selling the progeny as they became marketable. Mylcraine made rental and deposit payments to Kleen Leen until sometime in 1972. In May, 1974, Kleen Leen filed suit to recover certain payments allegedly due under the 1970 lease and for the proceeds of a sale by Mylcraine of the leased swine. Mylcraine counter-claimed, alleging financial losses because of the poor quality of the animals delivered to him. Each party then pleaded the 1971 release agreement as a defense to the other's claim.

Mylcraine's motion for judgment on the pleadings was treated, pursuant to Ind.Rules of Procedure, Trial Rule 12(C), as a TR. 56 motion for summary judgment when Kleen Leen responded with an affidavit of one of its employees and statements made by Mylcraine in a deposition taken by Kleen Leen. The deposition of Mylcraine set forth a series of problems he experienced with swine production. The affidavit presented by Kleen Leen recites the history of the transaction and further states facts which indicate there was no intent to release Mylcraine from payments on the contract.

The trial court sustained Mylcraine's motion and found that neither party should take anything by its claim. From the overruling of its motion to correct errors, Kleen Leen appeals, contending the trial court erred in granting summary judgment based We reverse and remand.

on the "Mutual Release Agreement" as there exist genuine issues of material fact.

Central to this appeal is the meaning to be accorded the July, 1971, "Mutual Release Agreement" which reads:

MUTUAL RELEASE AGREEMENT

This Mutual Release Agreement between KLEEN LEEN, INC., (hereinafter referred to as "CORPORATION") and Ervin E. Mylcraine (hereinafter referred to as "PRODUCER").

WITNESSETH:

WHEREAS, CORPORATION agreed to provide certain Livestock and/or services for PRODUCER in return for PRODUCER'S agreement to make certain payments to CORPORATION, and

WHEREAS, a dispute has arisen between the parties in connection with their arrangement.

NOW, THEREFORE, in consideration of the payment of (see the terms of the attached adjustment request) Dollars ($ ) by to receipt of which is hereby acknowledged, and in further consideration of the execution of this Agreement, the parties hereby mutually release, each from the other, from any and all liability, claims demands, actions or causes of action which they may have against each other by reason of or arising from any business transaction in which they have engaged as of the date of this Agreement.

This Mutual Release shall apply to any liability CORPORATION and PRODUCER may have to each other for any damage, direct or indirect, and either may have suffered, whether or not presently known to them or either of them, or which they or either of them may hereafter suffer by reason of or arising from any business transaction in which they have engaged as of the date if (sic) this Agreement.

It is understood that both parties, their agents, servants and representatives, deny any and all liability to CORPORATION and PRODUCER by reason of or arising from any business transaction in which they have engaged as of the date of this Agreement and that the consideration herein specified to be paid and the execution hereof are in settlement of disputed claims.

The "Adjustment Request" appended to and cited as consideration for "Mutual Release Agreement" had the effect of postponing delivery dates of groups of the swine, such dates being critical to the determination of due dates of rental and security deposit payments under the 1970 contract.

Kleen Leen asserts that the language of the "Adjustment Request" and the conduct of the parties subsequent to the execution of the "Mutual Release Agreement" present genuine issues of material fact which should preclude the granting of summary judgment.

Judge Lybrook...

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