Smeekens v. Bertrand, 268A20

Docket NºNo. 2
Citation144 Ind.App. 656, 248 N.E.2d 48, 17 Ind.Dec. 724
Case DateJune 11, 1969
CourtCourt of Appeals of Indiana

Page 48

248 N.E.2d 48
144 Ind.App. 656
John P. SMEEKENS, Jr. and Arlene L. Smeekens, Appellants,
v.
Edmour H. BERTRAND and Helen S. Bertrand, Appellees.
No. 268A20.
Appellate Court of Indiana, Division No. 2.
June 11, 1969.
Rehearing Denied July 23, 1969.

[144 Ind.App. 657]

Page 49

Gerald Deller, Angola, Robert Robinson, Robert Hollowell, Indianapolis, for appellants.

Wilson E. Shoup, Angola, for appellees.

WHITE, Judge.

Appellants were plaintiffs and appellees were defendants in the trial court in litigation involving the right to possession of real and personal property constituting the Panorama Motel near Angola in Steuben County. The Honorable F. Kenneth Dempsey, sitting as Special Judge in the Steuben Circuit Court made and filed special findings of fact and conclusions of law on which he rendered judgment that plaintiffs-appellants take nothing and defendants-appellees recover costs. At the same time the trial judge filed the following explaining his decision: 1

[144 Ind.App. 658] 'This is an action by the plaintiff in three paragraphs of amended complaint. The first paragraph is for the possession of land and personal property; the second is for the cancellation of a contract between the parties here for the sale of real estate and personal property; the third paragraph seeks to quiet title to the real estate in the plaintiffs. The issues are joined by the answers of the defendant. The determination of the first and third paragraphs depends upon the fate of the second paragraph.

Page 50

'The material facts of the controversy are not in substantial conflict.

'On June 23, 1956, the parties entered into a written contract under the terms of which the plaintiff agreed to sell and the defendant agreed to pay the sum of One Hundred and Fifty Thousand, ($150,000.00) Dollars, for real estate upon which was located a motel and certain specifically described personal property. The contract called for specific monthly payments on the principal and interest on the 1st day of each month. Time was made the essence of the contract which provided that in the event of default by the purchasers the plaintiff should have the right to declare the contract 'forfeited and void.'

'All payments of principal and interest accruing prior to November 30, 1959, were paid by the defendants and accepted by the plaintiff.

'On December 1, 1959, there was due under the terms of the contract the sum of Three Thousand, ($3,000.00) Dollars, on the principal, and Three Hundred and One ($301.50) (sic) Dollars interest. The interest and One Thousand, ($1,000.00) Dollars, of the principal was paid and accepted by the plaintiff.

'On January 1, 1960, there became due on the contract the sum of One Thousand, ($1,000.00) Dollars on the principal and accrued interest thereon. This sum or these sums were not paid.

'During December, and possibly very early in January, discussions were had between Mr. Smeekens and Mrs. Bertrand as to the delinquencies, and during this period Mrs. Bertrand sent to the plaintiffs five separate checks of One Hundred ($100.00) Dollars, each. There is no evidence of the plaintiff exercising or attempting to exercise the right to declare a forfeiture during this period.

'On January 9, 1960, Mr. Smeekens and Mrs. Bertrand met and entered into negotiations looking to re-scheduling [144 Ind.App. 659] the payments of the balance of the principal and interest as of January 1, 1960. These negotiations resulted in a proposal of a new schedule of payments, the execution by Mrs. Bertrand and delivery of a check covering the first payment contemplated in the prospective new schedule. This check was taken by Mr. Smeekens, held by him until the date of trial, but never cashed by him.

'On January 11, 1960, Mr. Smeekens mailed to Mrs. Bertrand a type written proposed new schedule, together with a draft for signature of a supplemental agreement covering the new schedule.

'The next communication of substance between theparties (sic) was in the office of an attorney, named Wood. Mr. Smeekens and Mrs. Bertrand were present. Mr. Wood, told Mr. Smeekens that he would advise his client, Mrs. Bertrand not to execute the supplemental agreement. There is no evidence that Mrs. Bertrand said anything on this score. Mr. Smeekens left the meeting with the so called first payment check under the new schedule. This meeting had adjourned with the agreement of the parties to meet again on January 27, 1960.

'The next day, January 23, 1960, Mr. Smeekens called on Mrs. Bertrand at the motel and orally stated that he declared the contract void and demanded that she take her personal belongings and her children and get out. No time to cure the default was given. She refused to vacate.

'On the same day, January 23, 1960, the plaintiff caused to be served upon the defendant a written declaration of forfeiture, in which it was stated that the defendants were notified that John B. Smeekens, Jr., had declared the contract forfeited and void according to the terms and conditions therein. Not only that, but he demanded all pass due installments, together with interest, possession of the real estate and personal property, and the keys to the property, etc. Posession was not in surrender pursuant to this notice.

Page 51

'On February 2, 1960, the present action was filed. The plaintiffs filed their affidavit for immediate possession and a bond. Possession pursuant thereto was delivered by the Sheriff on February 19, 1960.

'The question here presented is whether or not, under the foregoing facts, the plaintiff had the right to forfeiture on January 23, 1960, in the manner in which he attempted to exercise it.

[144 Ind.App. 660] 'It should be noted at this point that the plaintiff alleges three separate breaches, (1) an assignment of the contract without the consent of the plaintiff, (sic) (2) the removal of personal property listed in the contract...

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8 practice notes
  • Skendzel v. Marshall, 773S145
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Octubre 1973
    ...the default is paid within a reasonable and specified time.' (289 N.E.2d at 771, emphasis added, citing) 'Smeekens v. Bertrand, (1969), 144 Ind.App. 656, 248 N.E.2d 48 (transfer denied); Conner v. Fisher (1964), 136 Ind.App. 511, 202 N.E.2d 572; McBride v. Griffith et al. (1962), 134 Ind.Ap......
  • Smeekens v. Bertrand, 3-473A34
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Octubre 1973
    ...Court of Appeals of Indiana, Third District. Oct. 29, 1973. Rehearing Denied Dec. 3, 1973. Opinion Superseded 311 N.E.2d 431. See also 144 Ind.App. 656, 298 N.E.2d Page 503 Ralph R. Blume, Blume, Wyneken, Levine & Clifford, Fort Wayne, for appellants. Wilson E. Shoup, Angola, for appellees.......
  • Bertrand v. Smeekens, 3--1272A93
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Junio 1973
    ...tried and decided against the Smeekenses. The judgment was affirmed by the Appellate Court of Indiana in Smeekens v. Bertrand (1969), 144 Ind.App. 656, 248 N.E.2d 2 For the present law, see P.L. 303, passed April 10, 1973; the above statute was repealed on April 10, 1973. 3 The rule of stat......
  • Szlafrak v. Donaldson, 570A80
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Junio 1971
    ...be considered on appeal in order to determine the meaning and effect of the trial court's decision.' Smeekens v. Bertrand (Ind.App.1969), 248 N.E.2d 48, 49, 17 Ind.Dec. 724, 725, n. 2 Cole v. Sheehan, supra, illustrates that at all levels the difficulty in distinguishing between the functio......
  • Request a trial to view additional results
8 cases
  • Skendzel v. Marshall, 773S145
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Octubre 1973
    ...the default is paid within a reasonable and specified time.' (289 N.E.2d at 771, emphasis added, citing) 'Smeekens v. Bertrand, (1969), 144 Ind.App. 656, 248 N.E.2d 48 (transfer denied); Conner v. Fisher (1964), 136 Ind.App. 511, 202 N.E.2d 572; McBride v. Griffith et al. (1962), 134 Ind.Ap......
  • Smeekens v. Bertrand, 3-473A34
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Octubre 1973
    ...Court of Appeals of Indiana, Third District. Oct. 29, 1973. Rehearing Denied Dec. 3, 1973. Opinion Superseded 311 N.E.2d 431. See also 144 Ind.App. 656, 298 N.E.2d Page 503 Ralph R. Blume, Blume, Wyneken, Levine & Clifford, Fort Wayne, for appellants. Wilson E. Shoup, Angola, for appellees.......
  • Bertrand v. Smeekens, 3--1272A93
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Junio 1973
    ...tried and decided against the Smeekenses. The judgment was affirmed by the Appellate Court of Indiana in Smeekens v. Bertrand (1969), 144 Ind.App. 656, 248 N.E.2d 2 For the present law, see P.L. 303, passed April 10, 1973; the above statute was repealed on April 10, 1973. 3 The rule of stat......
  • Szlafrak v. Donaldson, 570A80
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Junio 1971
    ...be considered on appeal in order to determine the meaning and effect of the trial court's decision.' Smeekens v. Bertrand (Ind.App.1969), 248 N.E.2d 48, 49, 17 Ind.Dec. 724, 725, n. 2 Cole v. Sheehan, supra, illustrates that at all levels the difficulty in distinguishing between the functio......
  • Request a trial to view additional results

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