Lacy v. White, 1--672A18
| Decision Date | 19 October 1972 |
| Docket Number | No. 1--672A18,1--672A18 |
| Citation | 288 N.E.2d 178,153 Ind.App. 504 |
| Parties | Richard A. LACY, Glenda M. Lacy, Appellants, v. Howard WHITE, Phyllis White, Appellees. |
| Court | Indiana Appellate Court |
James R. White, R. Clark Allen, New Castle, for appellants.
Robert A. Harvey, George W. Hand, New Castle, for appellees.
The complaint in this cause of action was filed July 8, 1971. Although the present Indiana Rules of Court were adopted and in effect at that time, the pleadings were all filed under the preceding Rules of the Supreme Court.
The complaint was for ejectment and cancellation of contract to which was filed an answer in three Paragraphs, the first of which was denial, admission and no information and the second and third of which were affirmative and in the nature of a counterclaim, with the third Paragraph praying judgment against the plaintiffs-appellees in the amount of $10,000 and for damages.
Trial was by the court without the intervention of a jury and after which the court, having had the case under advisement, entered its judgment that the conditional sales contract entered into between the parties be terminated and cancelled; that the plaintiffs-appellees are entitled to immediate possession of the real estate in question and are awarded $2,050 for damages for installments due and unpaid.
The court further decreed that the defendants-appellants take nothing by their cross complaint.
The facts are that defendants-appellants were in the market for a contractor to build them a new home. They went to the plaintiff-appellee, Howard White, who is by occupation a builder of homes around New Castle, Indiana, and a developer of an area known as 'White Estates' which is near New Castle. Mr. White built and developed 92 homes and 22 apartments in the development.
Appellant Lacy testified that he asked Mr. White about building a new home for them. Mr. White said that he had a home he would like for the Lacys to see and was told by the Lacys they were not interested, and they wanted to build a home according to their blueprints, but upon the insistence of appellee White they looked at a new home which they subsequently purchased.
Defendants-appellants agreed to take this particular home at a cost to them of $31,000. They paid $5,000 down and were allowed a $600 credit, making a total down payment of $5,600.
The parties agreed that the Lacys would pay $150 per month from June 1, 1968, until June 1, 1969, as follows:
They agreed further as follows:
Thereafter, the contract was reduced to writing by defendants-appellants' attorney and executed by all the parties before a Notary Public as of May 1, 1968, and executed on June 7, 1968. No provision was made in the contract for the payment of interest on the unpaid balance due thereon.
At the end of the year no new written agreement was entered into but defendants-appellants retained possession of the premises and paid $150 per month plus the taxes on the property for an additional period of twelve months, after which they discontinued making payments.
The defendants-appellants' third affirmative Paragraph of answer, designated as a counterclaim, alleged that prior to the sale the appellee, Howard White, made an oral agreement with defendants-appellants that he would personally see that any later discovered defects in the house would be corrected by him and that said agreement was made to induce the defendants-appellants to purchase said real estate.
The law is so well settled that it needs no citation of authority that oral representations made by the parties prior to the execution of the real estate contract are merged into the written contract. Therefore, the parties are bound by the terms of the written contract and it was the trial court's duty in passing upon the evidence to construe the contract and not to consider any parol evidence leading to the execution of it.
The third affirmative Paragraph of answer further alleges twelve defects in the home; that frequent requests were made by defendants-appellants upon the appellee, Howard White, to correct various and numerous defects in the home and that he refused to abide by his agreement with defendants-appellants.
Defendants-appellants' evidence was that the house became very hot in the summer and in winter, when the outside temperature was as low as 18 they could not get the temperature inside the home above 60 , with a thermostat in each room set at 90 and the fireplace on and the oven on, with the oven door open. The evidence was, further, that in an attempt to live in the house and stay warm the defendants-appellants and their two children brought mattresses down in front of the fireplace in cold weather and on at least one occasion they had to leave home and stay with friends in order to have enough heat to be comfortable. Plaintiff-appellee, White, testified that a complaint was made that defendants-appellants could not get heat above 60 and Mr. White took a thermometer to the home where he set it on a table and it went up to 70 in a short time.
When the wind blew, draperies inside the house blew out from the wall; a person inside the house could feel outside air blow through the electrical switches in the walls; the inter-com system inside the house became covered with frost; pipes inside the house froze in cold wheather and the purchasers had to carry their own water from outside. Fixtures in the bathroom froze up and burst and were replaced by new fixtures purchased by the Lacys.
There is disputed evidence as to the insulation, one side saying the house was properly insulated and the other stating that the insulation was stacked in piles and not uniform. Defendants-appellants' exhibits show the insulation under the floor came loose and plumbing under the house had not been wrapped with insulation. White contends the insulation was adequate, while Lacy introduced evidence showing that the insulation was inadequate.
A bathroom heater was replaced but never put in the ceramic tile in the wall, but left hanging loose. Lacy testified the house got so cold you could not stand barefoot in the kitchen in the winter and that wash cloths froze when left on the tub overnight.
The evidence was that the footings were poured in water in the trench in cold weather and that the location of the house was in swampy land.
A photograph of the house, including other houses, shows that there is snow on the roofs of other houses, but on the residence portion of defendants-appellants' home there is no snow; however there is snow on the roof of their unheated garage.
Plaintiff-appellee, White, contends that he made some repairs. This was admitted by defendants-appellants, but they further contend the repairs were not correctly made.
From the exhibits in the record we conclude that the trial judge could find that they corroborated the evidence of the defendants-appellants, as alleged in their third Paragraph of answer.
Lacy alleged many other defects in the house, some of which were repaired by White, and some that were not called to White's attention. These alleged defects supplement the defendants' contention that the house was poorly constructed, but do not materially strengthen the argument of habitability as raised by the appellants. Certainly, there was a conflict in the evidence as to the faulty construction of the house.
Defendants-appellants timely filed their motion to correct errors, for the following reasons:
(1) The decision of the court awarding judgment in the amount of $2,050 for installments due and unpaid is contrary to law and is contrary to the evidence;
(2) The decision of the court that the defendants take nothing from their cross-complaint is contrary to law and contrary to the evidence.
The memorandum filed with the motion to correct errors is omitted from this opinion. However, at the close of the memorandum defendants-appellants requested:
'1. That the judgment be corrected as to the awarding of damages to plaintiffs and that plaintiffs be awarded no such damages.
'2. That the judgment be corrected to award the defendants damages as requested in cross-complaint and in an amount that reflects payments made by them under the contract, i.e., $9200.00.
Specification 4, subparagraph (b)(2) of the contract provided that at the end of the first year period the parties to the contract were to make a satisfactory arrangement for the then unpaid balance of the purchase price.
The evidence was without dispute that the purchasers, defendants-appellants, paid the monthly payments for the first twelve months as agreed. The evidence is, further, that at the close of twelve months the parties hereto either failed or refused to expressly make satisfactory arrangements concerning the payments of the then unpaid balance of the purchase price. However, defendants-appellants continued to pay $150 per month plus taxes on the property for an additional period of twelve months, or a total of twenty-four payments. During this period of time purchasers continued to reside in the house and to make more demands for repairs. After this, they discontinued making payments and this suit was filed July 8, 1971.
It is defendants-appellants' contention that a dispute arose prior to the expiration of the one year on two matters, namely: (a) whether the $150 monthly payments that had been paid were to be credited to principal or to interest...
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