Rembold Motors, Inc. v. Bonfield
| Decision Date | 25 August 1971 |
| Docket Number | No. 3--1072A76,3--1072A76 |
| Citation | 155 Ind.App. 422,293 N.E.2d 210 |
| Court | Indiana Appellate Court |
| Parties | REMBOLD MOTORS, INC., Appellant (Defendant below), v. Genevieve I. BONFIELD, Appellee (Plaintiff below). . March, 7, 1973. John E. Newby, Daniel E. Lewis, Jr., and Edward L. Volk, of Newby, Lewis & Kaminski, La.Porte, for appellant. Clarence T. Sweeney, Lee W. Dabagia, Patrick E. Donoghue of Sweeney, Fox, Sweeney, Winiski & Dabagia, Michigan City, for appellee. SHARP, Judge. This case was commenced by the Plaintiff-Appellee, Genevieve, I. Bonfield, by the filing of a complaint on |
John E. Newby, Daniel E. Lewis, Jr., and Edward L. Volk, of Newby, Lewis & Kaminski, La.Porte, for appellant.
Clarence T. Sweeney, Lee W. Dabagia, Patrick E. Donoghue of Sweeney, Fox, Sweeney, Winiski & Dabagia, Michigan City, for appellee.
This case was commenced by the Plaintiff-Appellee, Genevieve, I. Bonfield, by the filing of a complaint on August 25, 1971, wherein Rembold Motors, Inc. was designated Defendant. Said complaint alleged that the Appellee as lessor had entered into a written lease dated June 30, 1969, with the Appellant as lessee. The complaint further alleged that the Appellant was in default under the terms of said lease in the sum of $900.00 for rent and the sum of $630.72 for property taxes which had been demanded and payment refused. The complaint prayed for 'termination of the lease, ejectment of the defendant from the leased premises, for costs in this action and for all other proper relief'. A copy of the lease in question was attached to the complaint and consists of 24 numbered paragraphs covering 12 full pages in the transcript. This lawsuit centers on one of the basic provisions of the lease which provides as follows:
'The Lessor hereby leases to the Lessee, and the Lessee hereby hires from the Lessor the following described real estate together with improvements situated thereon and thereto belonging, to-wit:
(Real estate here described)
for a term of five (5) years commencing on the 1st day of July, 1969, and ending on the 30th day of June, 1974, at an agreed rental of Nine Hundred Dollars ($900.00) per month together with an amount of money which may exceed the property taxes of $2,000.00 per annum payable for said demised premises commencing with taxes for the year 1969 due and payable in 1970 and continuing during the entire term of the lease, or any extensions thereof, in order that Lessee will pay such excess taxes for the entire term of occupancy. The monthly rental of $900.00 per month shall be payable in advance on the 1st day of each and every month to the Lessor at such place as the Lessor may from time to time designate in writing.'
Two other relevant provisions are paragraphs 18 and 20 which provide:
The lease proceeds in a detailed fashion to describe various rights and obligations of the parties under it.
On the 3rd day of November, 1971 the Appellant filed an answer to the Appellee's complaint explicitly setting out three defenses. The first defense asserted that the complaint failed to state a claim upon which relief could be granted. The second defense admitted the allegations of the complaint with reference to the execution of the lease but denied the allegations of the complaint with reference to the default. The third defense alleged:
'Plaintiff has accepted rent allegedly delinquent and taxes allegedly payable have been paid or tendered whereupon the plaintiff has waived alleged defaults complainted (sic) of in this action.'
Thereafter on the 11th day of November 1971 the Appellant filed a supplemental answer asserting a fourth defense as follows:
'That since the defendant's Answer was filed herein on or about November 3, 1971, defendant has discovered that checks given by it to the plaintiff, Genevieve I. Bonfield, or her attorneys, at various times since August 1, 1971 have apparently not been presented for payment and that these checks aggregate Four Thousand Two Hundred Thirty Dollars and Seventy-two Cents ($4,230.72).
Defendant further says that all of said checks were tendered in good faith and in the manner heretofore acceptable to the plaintiff as payment for rentals due and none of the same have been returned to it or their receipt declined by plaintiff nor has defendant been notified that the same were not negotiated; further, that the tender by the defendant of said checks having been in good faith removed any delinquency or default under the Lease attached to the Complaint of the plaintiff as Exhibit 1 but that defendant has relied to its detriment upon the acceptance and retention of said checks for all amounts due under said Lease.
Defendant as of November 10, 1971 has learned that plaintiff has negotiated and executed a Lease of the premises demised to it with a third party without the knowledge of the defendant and without the completion of this litigation. In order to protect its position the defendant, therefore, tenders into Court by paying into the Clerk's Office coincident with the filing of this Supplemental Answer the sum of Four Thousand Two Hundred Thirty Dollars and Seventy-two Cents ($4,230.72) which is the amount of the following checks received by the plaintiff as indicated:
Check No. 10875
dated August 24, 1971 $ 900.00
Check No. 10922
dated Sept. 13, 1971 900.00
Check No. 11014
dated October 4, 1971 900.00
Check No. 11098,
dated October 31, 1971 1530.72
Plaintiff is estopped, therefore, to assert any provisions of the Lease with defendant which are inconsistent with plaintiff's conduct in accepting and retaining the checks of the defendant as previously stated and from complaining and obtaining relief by virtue of those complaints for alleged prior failure to make payments under said Lease. Further, that all of the actions of the plaintiff in retaining the tendered checks and entering into a Lease Agreement with a third party were covert and resulted in defendant, a business corporation, being placed in an injured position as a result of its reliance upon the apparent fact that any alleged breaches of the Lease had not been cured by payment.'
On the 3rd day of March, 1972 the Appellee filed her Motion for Summary Judgment asserting that 'the pleadings, exhibits, affidavits and deposition on file show that there is no genuine issue as to any material fact and that Plaintiff is entitled to judgment as a matter of law'. By way of affidavit four letters dated January 14, 1971, March 22, 1971, July 21, 1971 and August 5, 1971 addressed to the Appellant from the attorney for the Appellee were put before the trial court. The one of principal relevance here was dated August 5, 1971 to the Appellant from Appellee's lawyer and reads as follows:
'My communication addressed to you under date of July 21 concerning delinquent rent remains unanswered.
I respectfully refer you to the lease executed on June 30, 1969, which among other things, provides for the prompt payment of rent on the first day of each and every month. Your failure to pay the rent for the month of December creates a default on your part under the provision of the lease. I further respectfully refer you to the provisions of the same lease wherein the lessee is obliged to reimburse the lessor for the amounts paid in property taxes which exceed $2,000 per annum commencing with the year 1969, with taxes payable in 1970. The excess over $2,000 for 1969 amounts to $145.70. The excess taxes over $2,000 for the year 1970 amounts to $485.02. Property taxes are payable on or before the first Monday in May, but there is a provision that permits one-half of the payment to be made in May and the remaining one-half to be made in November. Accordingly, for the year 1969 and 1970, the total excess taxes over $2,000 amount to $630.72. You therefore, are delinquent for rent and taxes in the amount of $1,530.72, and Mrs. Bonfield has given me definite instructions to institute suit for collection of these items unless payment is received in full on or before the 23rd day of August, 1971. I hope court action may be avoided.'
Likewise, the trial court had before it the deposition of James P. Rembold who was identified as the owner of Appellant Rembold Motors, Inc. This deposition was taken at the instance of the Appellee. Some of the relevant testimony of James P. Rembold questioned in the deposition by counsel for the Appellee is as follows:
'Q Now, during the term of the lease that commenced on June 30, 1969, on what day of the month were you making your rental payments?
A Well, somewhere around the first of each month.
Q Did you continuously make all of your rental payments on or about the first of the month throughout the term of the lease agreement since it began on June 30, 1969?
A With one exception.
Q And what was that exception?
A I got a month behind in January of '71, I guess it was.
Q When you say...
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