Smeekens v. Bertrand
| Decision Date | 29 October 1973 |
| Docket Number | No. 3-473A34,3-473A34 |
| Citation | 302 N.E.2d 502 |
| Parties | John P. SMEEKENS, Jr., and Arlene L. Smeekens, Appellants (Defendants Below), v. Helen S. BERTRAND and Edmour H. Bertrand, Appellees (Plaintiffs Below). |
| Court | Indiana Appellate Court |
Ralph R. Blume, Blume, Wyneken, Levine & Clifford, Fort Wayne, for appellants.
Wilson E. Shoup, Angola, for appellees.
This case represents the aftermath of Smeekens v. Bertrand, 144 Ind.App. 656, 248 N.E.2d 48 (1969).
On June 23, 1956 the Appellants, John P. Smeekens, Jr. and Arlene L. Smeekens, as sellers, and the Appellees, Helen S. Bertrand and Edmour H. Bertrand, as buyers, executed a conditional sale contract for real estate upon which a motel was situated in Steuben County, Indiana. Among other things the contract contained a forfeiture clause with reference to the payments due by the Appellees as buyers. Between June 23, 1956 and February 12, 1960 the Appellees under said contract paid to the Appellants the sum of $85,000.00 on the principal purchase price of said contract and $16,426.50 as interest. In February of 1960 the Appellants attempted to retake possession of said real estate by filing an action for ejectment against said Appellees. An order was obtained from the Clerk of the Steuben Circuit Court to the Sheriff of Steuben County, Indiana to seize said real estate if the Appellees failed to post a bond within five days and to deliver possession to the Appellants in the event the Appellants posted a bond to protect the Appellees should such seizure prove wrongful. Pursuant to said order and the Sheriff's execution thereof the Appellants obtained full possession of said real estate on February 12, 1960 upon the filing of the appropriate written undertaking or bond. In January of 1967, the Steuben Circuit Court determined that the aforesaid taking of possession of said real estate by the Appellants in 1960 was wrongful and the Appellate Court of Indiana affirmed said decision on June 11, 1969 in Smeeken v. Bertrand, 144 Ind.App. 656, 248 N.E.2d 48 (1969) and denied rehearing July 23, 1969. Our Supreme Court denied transfer on October 29, 1969, thus rendering final the determination previously made by the Steuben Circuit Court.
This action was commenced by the Appellee, Helen S. Bertrand, as Plaintiff in a complaint on bond for wrongful ejectment filed in Steuben Circuit Court on February 17, 1967. Said cause was docketed as No. 85-3362 in the Steuben Circuit Court. After said cause was venued to the Whitley Circuit Court the Appellee Bertrand filed a paragraph II of complaint against the same defendants on March 5, 1971 wherein it was alleged that the Appellants Smeekens "without right rescinded, terminated and abrogated the certain conditional sales contract of June 23, 1956 between said defendants as vendors and these plaintiffs as vendees and said defendants wrongfully ousted the plaintiffs from and took possession of the certain real estate described in said complaint."
Answers were filed to both paragraphs of complaint and the cross-complaint to which an answer in denial was filed by Appellants Smeekens. The issue of the right of Appellants to a set-off was asserted in these.
The case was tried solely on stipulations of evidence and various documents.
The trial court rendered its findings and judgment on August 22, 1972 and found that the Appellants Smeekens
The trial court also found against the Appellees and for the Appellants on the Appellees' first paragraph of their complaint. The trial court also found for the Appellees and against the Appellants on their answer and counter-claim in five paragraphs and found for the Appellees on their paragraph II and entered a judgment in the sum of $147,616.66 and costs.
There is no assertion of error here regarding that part of the judgment in the sum of $85,000.00 representing principal payments by the Appellees as buyers to the Appellants as sellers on said contract. In their reply brief the Appellants state: "Smeekens do not dispute the fact that this Court has previously decided in Smeekens v. Bertrand (1969) 144 Ind.App. 656, 248 N.E.2d 48, that their possession of the motel in February, 1960, when they commenced their original action for possession of the motel was premature and wrongful."
We have also carefully examined the contents of the Appellant's motion to correct errors and the contents of the Appellants' brief and reply brief and nowhere in those items do the Appellants explicitly contest and make argument concerning that part of the judgment representing interest from February 12, 1960 to August 22, 1972 in the sum of $62,616.66. (We do not here have the issue raised as to prejudgment interest as it was in Portage Indiana School Construction Corp. v. A.V. Stackhouse Co., Ind.App., 287 N.E.2d 564 (1972)).
The sole issue that the Appellants raise for our determination in this case is the Appellants' alleged right to a set-off against said judgment based on the rents and profits from said real estate while the Appellees were in possession thereof between June 23, 1956 and February 12, 1960. It is also clear and undisputed from the record that between those two dates in addition to the $85,000.00 of principal paid to the Appellants by the Appellees the sum of $16,426.50 of interest was also paid on said conditional sales contract by the Bertrands to the Smeekens.
When all of the arguments presented are carefully sifted it is apparent that no serious contention is made that the acts which were judicially and finally determined to be wrongful by the Appellants in February 1960 did not create in the Appellees a right to rescind this conditional sales contract with regard to the real estate in question. We should emphasize that the law of this case as evidenced by the decision and opinion of the Appellate Court on July 11, 1969 amounts to a final adjudication that said acts by the Appellants were wrongful and, although it appears that the Appellants would like for us to reconsider in some fashion that ruling, we will not do so. That ruling constitutes the law of this case and the parties, the trial court and this court are bound by it.
The issue in substance narrows down to the proper mathematical computation of damages from the stipulations of fact and documents which were before the trial court. Since this case was decided on stipulated facts and documentary evidence and nothing else, this court is in as good a position to examine such stipulations and documents as the trial court and will do so.
The acts of the Appellants in wrongfully declaring a forfeiture of the conditional sale contract, ejecting the Appellees therefrom and retaking possession of said real estate constituted an election by Appellants to terminate this contract. Grider v. Turnbow, 162 Or. 622, 94 P.2d 285 (1939). The Appellants' wrongful resumption of possession may constitute a recission. Knowles v. LaPure, 189 Wash. 456, 65 P.2d 1260 (1937), and Montgomery et ux. v. Heider et ux., 147 Or. 523, 34 P.2d 657 (1934). Forcible and wrongful dispossession of the buyer by the seller may terminate a conditional sale contract. Schon v. Lawrence et al., 258 Mich. 543, 242 N.W. 745 (1932), and McBride v. Stewart, 68 Utah 12, 249 P. 114, 48 A.L.R. 267 (1926). Acts which may constitute a recission have been held to include reentry by the seller and ouster of the buyer, and bringing a strict foreclosure action, Zumstein v. Stockton et al., 199 Or. 633, 264 P.2d 455 (1953). For a case that closely parallels this one as to facts, reasoning and result, see Halvorson et al. v. Bexell et al., 157 Minn. 97, 195 N.W. 635 (1923). For other authorities holding that repossession by the seller evidences an intent by the seller to terminate the contract, see Scott v. Kyhl, 141 Mont. 523, 379 P.2d 803 (1963), and Dean v. Pioneer Cooperative Fire Insurance Co., 231 F.2d 18 (5th Cir.1956). The record in this case clearly permitted the trial court to exercise its equitable powers to find a recission of this contract.
When the sellers wrongfully ousted the buyers and seized possession of the real estate they evidenced an intent to terminate this contract. From that point on, in theory, the parties are to be left as though there had never been a contract. Dantzeiser v. Cook, 40 Ind. 65 (1872).
Under this general concept of damages for rescission the sellers were obligated to return to the buyers the full amount of the principal purchase price paid on this contract. Coleman v. Floyd, 131 Ind. 330, 31 N.E. 75 (1892); Babcock v. Farwell, 245 Ill. 14, 91 N.E. 683 (1910); and The Maytag Co. v. Alward, 253 Iowa 455, 112 N.W.2d 654, 96 A.L.R.2d 162 (1962). For specific application of these to contracts for the sale of land, Haralson et ux. v. Rhea et ux., 76...
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