Krisky v. Bryan

• Decision Date: 13 February 1917
• Docket Number: No. 9210.,9210.
• Citation: 115 N.E. 70,63 Ind.App. 611
• Parties: KRISKY v. BRYAN et al.
• Court: Indiana Appellate Court

63 Ind.App. 611

115 N.E. 70

KRISKY

v.BRYAN et al.

No. 9210.

Appellate Court of Indiana, Division No. 2.

Feb. 13, 1917.

Appeal from Superior Court, Lake County; Wm. B. Hess, Special Judge.

Action by Joseph Krisky against Louis A. Bryan and others. Judgment for defendants, motion for new trial overruled, and plaintiff appeals. Affirmed.

Sheehan & Lyddick, of Gary, for appellant. Otto J. Bruce, of Crown Point, William H. Matthew, of Gary, and W. Vincent Youkey, of Crown Point, for appellees.

IBACH, P. J.

On May 18, 1907, appellee entered into an agreement with appellant for the sale of a lot in the city of Gary, Ind. The agreement is in the following language:

“This agreement made and entered into this 18th day of May, 1907, between Louis A. Bryan of Gary, Indiana, hereinafter referred to as Bryan of the first part and Joseph Krisky of Bridgeport of the county of -, in the state of Ohio, witnesseth: That the said Bryan agrees to sell and the said party of the second part agrees to purchase one full town lot [here follows description], for $700 with interest at 6 per cent. from date until paid, upon the following conditions: That said Bryan agrees to deliver a warranty deed when the said party of the second part shall have paid the above-named sum in manner as follows, to wit: $250.00 cash, the receipt of which is hereby acknowledged, and also make 18 monthly payments of $25.00 each with interest, to the duly authorized agent of said Bryan, and the said party of the second part agrees to pay without notice the said above-named sum in the manner and at the times aforesaid; that should the payments aforesaid be and remain unpaid as herein provided for two consecutive months, then this contract shall at once cease and determine and all moneys paid theretofore by the said party of the second part to the said Bryan shall be forfeited to the use of the said Bryan as ascertained and liquidated damages. And it is hereby stipulated and agreed that time shall be of the essence of this contract and of all the conditions thereof.”

Appellant defaulted in the payments, and brings this action to recover back the money paid by him on the contract.

The complaint was in two paragraphs, and both were for money had and received. If the second paragraph appellant has set out in full the written contract, and has further alleged:

“That he had failed to make any payment on the contract after March 31, 1908, until May, 1909, when he offered to pay and tendered to appellee the amount due on the contract; that Bryan refused to accept the money and canceled and attempted to forfeit said contract and the money paid in thereon and kept said money and refused to give appellant a deed to said lot and refused to return the money paid in although demanded so to do.”

Following these averments is a demand for judgment for a sum equal to the payments made. Issues were joined by answer in general denial. A trial by the court resulted in judgment for appellee. The overruling of appellant's motion for a new trial is assigned as error, and relied on for reversal. Under this assignment appellant has challenged the sufficiency of the evidence to support the judgment.

“As a general rule, where there has been no rescission, and no cause for the rescission of the contract exists, there can be no recovery by the vendee of partial payments made thereunder. The cases in which the vendee is allowed to recover back money paid on a contract for the purchase of real estate, where it has been rescinded, may be generally classified, as, where the rescission is by mutual consent; where the vendor fails to perform; where there is fraud in the contract; where by the terms of the contract the purchaser may rescind, and where both parties are in default in performance. If the vendor is in no default, and the vendee is, no recovery may be had.” 29 Am. & Eng. Ency. of Law (2d Ed.) p. 727.

[1] Appellant contends, in effect, that the act of appellee in forfeiting the...