McBride v. Griffith

• Decision Date: 24 September 1962
• Docket Number: No. 2,No. 19537,19537,2
• Parties: Richard E. McBRIDE, Appellant, v. Lucille S. Hill GRIFFITH, William H. Griffith, Robert Snider, Juanita Snider, Appellees
• Court: Indiana Appellate Court

Page 22

185 N.E.2d 22

134 Ind.App. 12

Richard E. McBRIDE, Appellant, v. Lucille S. Hill GRIFFITH, William H. Griffith, Robert

Snider, Juanita Snider, Appellees.

No. 19537.

Appellate Court of Indiana, Division No. 2.

Sept. 24, 1962.

John W. Tranberg, Indianapolis, for appellant.

George Burkhart, Indianapolis, for Lucille S. Hill.

William B. Patrick, Indianapolis, for Robert Snider.

BIERLY, Judge.

This was an action brought by the appellant herein for the cancellation of a conditional sales contract for the sale of real estate, possession of the real estate involved, and to quiet title thereof in the said appellant.

The issues formed by appellant's complaint alleged in substance that the appellees, Lucille Griffith and William H. Griffith ¹ entered into a contract for the purchase of certain described real estate and that such contract was breached by them by being in default in the monthly payments, failure to pay tax installments, renting of the property, and by selling, assigning, or transferring the property to others without the consent of appellant, all in violation of their contractual agreements and responsibilities. The appellees, Robert Snider and Juanita Snider, were added as party defendants to answer as to their respective interests as purchasers of the equity of the Griffiths, appellees, in their conditional sales contract.

'Trial was had and evidence heard before special Judge Charles K. McCormack on the 26th day of June, 1959, the 9th and 16th day of November, 1959 and on the 7th and 23rd days of December, 1959.

'Judgment was rendered the 27th day of May, 1960, denying to the Appellant the cancellation of his contract sued upon and ordering Appellant, upon tender of $564.26 to convey to Appellees Griffiths the specific real estate involved. The Judgment further found for the Appellees upon their respective pleadings in accordance with the prayers thereof; and ordered Griffiths to convey to Sniders after Griffiths obtain title. It was also the Judgment of the Court that defendants Patterson, McCorkle and John Flory had no interest in the subject matter of the action or the results thereof.

'The findings of the Court were filed June 9, 1960, wherein the Court found that the Appellant was not entitled to cancellation of his contract, but was entitled to judgment in the amount of $564.26. The Court further found for defendants as set out in the signed judgment and found for them on the respective paragraphs of answer in their respective proceedings.' (Appellant's brief pp. 4 & 5.)

Appellant in his assignment of errors alleges that the court erred in overruling appellant's motion for a new trial which asserts, (1) That the decision of the court is not sustained by sufficient evidence. (2) That the decision of the court is contrary to law.

Since the appellant herein was the plaintiff below and was charged with the burden of proof of the allegations of his complaint, his first ground of the motion for a new trial is unavailing to him. Freeport Motor Casualty Co. v. Chafin (1960), 131 Ind.App. 362, 367, 170 N.E.2d 819 and cases cited.

The only question here we need to decide is whether or not the decision of the trial court is contrary to law. It is well settled by our decisions and of the Supreme Court that it is only when the evidence is without conflict and leads inescapably to but one reasonable conclusion, contrary to that of the trial court, that the decision of the trial court will be set aside on the ground that its decision is contrary to law. Pokraka v. Lummus Co. (1952), 230 Ind. 523, 532, 104 N.E.2d 669 and Losche & Sons v. Williams & Associates (1948), 118 Ind.App. 392, 395, 78 N.E.2d 447.

The uncontradicted evidence made apparent by the record in this cause reveals that the appellees, Lucille S. Griffith and William H. Griffith, were not only dilatory in making their monthly payments on the real estate described in appellant's complaint as required by the terms of the conditional sales contract but were also many months in arrears in the said payments. Furthermore, they were delinquent in the payment of the taxes on said property. In addition, the appellees, Griffiths, admit that they first rented the property and then transferred their equity in the real estate contract here involved to Sniders, appellees, in violation of the aforesaid contract.

It appears, however, that the appellant herein consistently accepted payments from appellees at irregular times or intervals and in irregular amounts, and permitted the back or delinquent payments to remain unpaid. Similar testimony reveals a similar state of facts as regards the tax payments in arrears.

It is now established by the judicial decisions of this state that an indulgent vendor, who consistently fails to require of the vendee compliance with the contractual provisions existing between himself and the vendee, thereby waives the provisions of the contract making the time of payment of the essence thereof and casts upon him the duty to give definite and specific notice to the buyer that he will be indulgent no longer and has a present intent to make full use of the forfeiture provisions in the contract unless the delinquent...