Rene's Restaurant Corp. v. Fro-Du-Co Corp., FRO-DU-CO

• Decision Date: 29 September 1965
• Docket Number: FRO-DU-CO,No. 2,No. 20382,20382,2
• Parties: RENE'S RESTAURANT CORPORATION, a Corporation, Appellant, v.CORPORATION, a Corporation, Appellee
• Court: Indiana Appellate Court

Page 385

210 N.E.2d 385

137 Ind.App. 559

RENE'S RESTAURANT CORPORATION, a Corporation, Appellant, v. FRO-DU-CO CORPORATION, a Corporation, Appellee.

No. 20382.

Appellate Court of Indiana, Division No. 2.

Sept. 29, 1965.

[137 INDAPP 560]

Royse, Travis, Hendrickson & Travis, Indianapolis, for appellant.

George Martz, Indianapolis, for appellee.

SMITH, Judge.

This is an appeal from the judgment of the Municipal Court of Marion County, Room Number One, in an action brought by the appellee, Fro-Du-Co Corporation, against the appellant, Rene's Restaurant Corporation, for possession of real estate and damages for breach of a leasehold agreement between the parties.

The relevant facts are that the appellee was the owner of certain improved real estate located in the City of Indianapolis and that the appellant entered into a leasehold agreement with the appellee to rent the real estate for restaurant purposes. The terms of the lease were that the appellant-lessee was to pay the appellee-lessor $300.00 per month plus an amount equal to 5% of the appellant's gross receipts in excess of $6,000.00 per calendar month. The minimum $300.00 was [137 INDAPP 561] to be paid in advance on the first day of each month. The percentage rental was to be paid within five days of the close of each calendar month.

In the latter part of 1964 the appellant contacted the appellee and demanded that the latter repair an entranceway to the building which had become rotted and had collapsed blocking passage into the restaurant. The appellee refused and thereafter the appellant caused the entranceway to be repaired. Subsequently when the January 1, 1964 rental payment became due the appellant owed the $300.00 plus $38.04, the latter representing 5% of December's gross receipts. Instead of paying the total amount due of $338.04 the appellant sent the appellee a check for $69.64 plus a receipt for $268.40 representing the cost of repairing the entranceway. The appellee refused to accept this check and on January 8, 1964 notified the appellant that the lease was terminated and demanded possession of the premises within thirty days from that date. Upon the appellant's refusal to surrender the premises the appellee filed this suit for possession and damages.

The issues were formed by the appellee's amended complaint and the appellant's answer in two paragraphs and the appellant's cross-complaint and the appellee's reply in two paragraphs and the answer to appellant's cross-complaint.

The trial court resolved the issues in favor of the appellee and granted a judgment for possession of the real estate and awarded damages in the amount of $3,366.90.

The appellant assigns as error the overruling of the motion for a new trial, the specifications of which are that the decision of the trial court is contrary to law, not sustained by sufficient evidence and the amount of recovery is excessive.

[137 INDAPP 562] The appellee is this appeal has not deemed it necessary to file an answer brief, therefore this Court in order to reverse the judgment need only determine if the appellant has demonstrated prima facie error. State ex rel. Board of Medical Registration and Examination v. Stucker (1953), 232 Ind. 76, 111 N.E.2d 714; Reed, Adm. v. Brown (1939), 215 Ind. 417, 19 N.E.2d 1015; State v. Rousseau (1936), 209 Ind. 458, 199 N.E. 587; Finerty, Auditor v. Bryan (1938), 214 Ind. 570, 16 N.E.2d 882.

The appellant in its brief argues that as a lessee it did not breach the lease agreement because it had the duty to make the necessary repairs to the entranceway and deduct the reasonable cost from the rent and that therefore the trial court's decision is contrary to law.

The appellant bases this contention on the fact that one of the terms of the lease provided that the appellee-lessor 'shall keep and maintain the outside walls, foundation and roof of the building in good repair and proper condition' and that the repair of the entranceway was within the meaning of this provision of the lease. The appellant further argues that not only was the duty set out in the terms of the lease as being the appellee's but also that the appellee by its prior acts of remedying such defects had recognized the duty was that of the appellee.

The appellant contends that the admissible and competent evidence introduced at the trial supported both of these contentions. Appellant to support its argument cites in his brief the case of Hendry v. Squier (1890), 126 Ind. 19, 25 N.E. 830 in which the Indiana Supreme Court stated the rule:

'If ...