Mertz v. Wallace

• Decision Date: 20 December 1929
• Docket Number: No. 13449.,13449.
• Citation: 93 Ind.App. 289,169 N.E. 333
• Parties: MERTZ et al. v. WALLACE.
• Court: Indiana Appellate Court

93 Ind.App. 289

169 N.E. 333

MERTZ et al.

v.WALLACE.

No. 13449.

Appellate Court of Indiana, in Banc.

Dec. 20, 1929.

Appeal from Tippecanoe Circuit Court; C. V. McAdams, Special Judge.

Action by Roy W. Wallace against Carl O. Mertz, administrator of the estate of William F. Mertz, deceased, and another. Judgment for plaintiff, and defendants appeal. Affirmed.Joseph B. Ross and Addison K. Sills, both of La Fayette, for appellants.

D. M. Patrick, of Indianapolis, and Randolph & Randolph, of La Fayette, for appellee.

NICHOLS, J.

Action by appellee against appellant for breach of a written contract whereby appellee agreed to lease certain premises owned by him to appellant Burt and decedent Mertz upon the terms and conditions set out in said contract, and to sell to them certain items of personal property specified therein. This is the second appeal in this case, and as the contract involved was fully set out in the opinion on the former appeal, we do not need to restate it here. The trial court, before the first appeal, sustained the several demurrers of the present appellants to the present appellee's claim; such ruling being based primarily upon what is regarded as the insufficiency of the contract which is the basis of this action. The judgment rendered on such rulings was appealed from, and this court, in Wallace v. Mertz, Adm'r, 86 Ind. App. 185, 156 N. E. 562, reversed the judgment of the trial court, with instructions to overrule the several demurrers of the several appellants to the claim as filed. After the case was remanded and the issues joined, a trial was had, and the court, after finding the facts specially, stated conclusions of law thereon favorable to appellee, which conclusions form the basis of the judgment now appealed from.

It appears by the special findings that previous to September 27, 1923, decedent Mertz and appellant Burt were partners in the name of Burt-Mertz Motor Sales, hereinafter called the Sales Company, doing business in La Fayette, Ind., and engaged in the sale of automobiles, operating an automobile garage and making automobile repairs; that Mertz died March 6, 1924, and that on March 14, 1924, appellant Mertz was appointed administrator of his estate; that at the time of the commencement of this action the partnership had no assets, and that it has had none since that time; that on September 27, 1923, appellee, Wallace, was the owner of certain real estate in La Fayette, and that he has continued since that time to own the same; that on said date there was situate on said real estate an automobile salesroom and garage, and that the same was equipped with machinery, tools, and appliances for the operation of a motor salesroom, and for storage and repair purposes, which building consisted of two stories; that a few weeks prior to September 27, 1923, the Sales Company took possession of a part of such building, and had on display automobiles in the showroom, other automobiles in the second story of the building, and had the use of the office in the building, and of the other facilities connected with the building, but that there was no lease existing between appellee and the Sales Company, and that the occupation of the same and the use thereof was indefinite and uncertain; that, while the Sales Company was so occupying such building, they were negotiating with appellee for the lease of the entire building, and continued such negotiations up until September 27, 1923; that while they were so negotiating for such building a portion of such building was occupied by the Brady Motor Company under a lease from appellee, a part was occupied by appellee, and a portion of the same was occupied by the Indian Refining Company under a lease from appellee; that on September 27, 1923, appellee and the Sales Company, as the result of their negotiations, entered into the agreement set out in the previous opinion of this court; that on September 28, 1923, appellee caused to be prepared a proposed lease of such building to Mertz and Burt in their firm name of the Sales Company, which, while it bears date of September 28, 1923, was not tendered to Burt and to Mertz until after the execution of the Brady agreement; that such proposed lease was delivered to Mertz and Burt soon after its preparation and before October 1, 1923 (we deem it unnecessary to set out this proposed agreement, except as its terms are hereinafter mentioned); that during the oral negotiations leading up to the executory agreement of September 27, 1923, the Sales Company agreed to pay appellee $1,000 as a bonus for the lease of his premises, in addition to the rent agreed upon; that such payment of $1,000, although denominated in the lease as rent, was intended by appellee and understood by the Sales Company as representing such bonus covered by their oral negotiations; that the Brady agreement was performed by the parties thereto as therein provided, and, the Brady Motor Company vacated the building on November 30, 1923, and appellee canceled his lease to the Brady Motor Company; that the Brady Motor Company, immediately after the execution of the Brady agreement, commenced to acquire other quarters into which to move its business, and continued so to do until October 5, 1923, when the Sales Company acquired a lease on the premises for which the Brady Company was negotiating and moved out of appellee's premises; that the proposed lease contained the usual stipulations concerning the legal rights and remedies of all parties who were to execute the same; that the proposed lease did not fix the date of its commencement, and was ambiguous and indefinite on that subject, and that the Brady agreement fixed no time certain for the commencement of use by the Sales Company of the portion of the building occupied by the Brady Company at an earlier date than December 1, 1923, and from the consideration of such contracts, the evidence adduced, and the acts of the parties thereto, that it was their purpose to enter into a lease at once to commence the five-year period, without intention to pay or collect rent while the Brady Motor Company occupied the building; that, soon after the proposed lease was presented, it developed that the minds of the parties were not in accord on the proposal, and a conference was held at which appellee and his counsel, Mertz, Burt, and their counsel, were present; that the Sales Company, prior to their negotiations with appellee for the lease, had acquired the agency for handling and selling Ford motorcars; that their contract for such agency was not for a time coextensive with the proposed lease; that the conference between the parties and their counsel related first to the first provision of the proposed lease fixing the time of commencement and duration of the lease; that the Sales Company and their counsel objected to the five-year term and the date of the lease, and assigned, as a reason for their objection to the length of term, their situation with reference to their agency contract for the Ford car business; that, upon such objection being made, appellee offered to modify the lease by extending to the lessee the right to assign or sublet the lease, if it lost the Ford agency; that appellee refused to yield as to the length of the proposed term, except as he had proposed to extend the right of assignment or subleasing; that the Sales Company refused to make a lease for the five-year term, or to accept the modification proposed by appellee, and thereupon appellee, by his counsel, answered that it was useless to proceed with the consideration of the proposed lease and withdrew from the conference; that prior to the consideration of the lease and its terms, as above found, there was some discussion as to other provisions of the lease not being in conformity with the executory contract, but these discussions were not carried to a conclusion, and the failure and refusal to agree upon the length of the lease resulted in the rupture of the conference; that at a later date Mertz and Burt had another conference with appellee, in which they...