Voelkel v. Berry

• Decision Date: 11 August 1966
• Docket Number: No. 20351,No. 1,20351,1
• Citation: 218 N.E.2d 924,139 Ind.App. 267
• Parties: Oscar L. VOELKEL, Appellant, v. Luther J. BERRY, Appellee
• Court: Indiana Appellate Court

Page 924

218 N.E.2d 924

139 Ind.App. 267

Oscar L. VOELKEL, Appellant, v. Luther J. BERRY, Appellee.

No. 20351.

Appellate Court of Indiana, Division No. 1.

Aug. 11, 1966.

[139 INDAPP 268]

John D. Clouse, Evansville, for appellant.

John L. Carroll, Edwin W. Johnson, Evansville, Louis W. Ritz, Evansville, of counsel, for appellee.

PRIME, Judge.

The action below was brought by the appellant, who claimed a breach of contract by the appellee in that appellee had orally argeed to pay to appellant a specific sum of money and a one-eighth interest in a gas and oil lease held by appellee, if the appellant would locate and secure investors for three-fourths of said lease for the sum of $7500.00.

Appellant alleges that the investors were secured and that appellee has failed to perform. Appellant's complaint was in three paragraphs, the first for breach of contract, the second for exemplary or punitive damages, and the third on the theories of quantum meruit and unjust enrichment.

After the filing of numerous motions and amendments the trial court ultimately sustained a motion to strike appellant's 2nd amended second paragraph, and sustained demurrers to appellant's 4th amended first paragraph and 2nd amended third paragraph.

Appellant refused to plead over and assigns as error the sustaining of the above three motions and demurrers, plus the sustaining, prior to demurrer, of appellee's motion to strike rhetorical paragraph six of the 4th amended first paragraph.

In our consideration, we first turn to the latter mentioned error alleged by appellant--the striking of rhetorical paragraph six of the 4th amended first paragraph.

[139 INDAPP 269] As stated earlier, the first paragraph was for breach of contract, and in rhetorical paragraph six, as set out below, the appellant claims that a change of position was alleged which would invoke an equitable estoppel and thus avoid the statute of frauds.

'6. That concurrently with defendant's offer, as set out in rhetorical paragraph No. 2 above, defendant stated to plaintiff that he wanted plaintiff to work for him on a full time basis, and plaintiff, relying on said offer and the offer referred to in rhetorical paragraph No. 2 hereinabove, changed his position in that he sold a number of oil leases which he owned so he might work for defendant on a full time basis.'

It seems established that estoppel, to defeat the statute of frauds, requires doing that which wouldn't have been otherwise done, and further, that there must be allegations of prejudice or injury to the complaining party. Hurd etc. v. Ball et al. (1958), 128 Ind.App. 278, 295, 143 N.E.2d 458.

In view of the wording of rhetorical paragraph six, we see nothing which would constitute reversible error as a result of its being stricken as irrelevant.

The next ruling complained of is the striking of the entire 2nd amended second paragraph. Upon examination of the questioned paragraph, we find that with the exception of rhetorical paragraph seven, it is an exact duplicate of the 2nd amended first paragraph. Rhetorical paragraph seven differs from any part of the 2nd amended first paragraph in that it seeks punitive damages for the alleged breach on the theory that the appellant 'well knowing himself to have promised plaintiff the consideration mentioned hereinabove, and well knowing that plaintiff performed his part of the agreement mentioned hereinabove, nevertheless arbitrarily, and for no reason known to plaintiff, refused to perform his part of the agreement mentioned hereinabove, and by reason thereof demands exemplary and punitive damages. * * *'

[139 INDAPP 270] Thus appellant claims that rhetorical paragraph seven causes a distinction between the 2nd and 3rd paragraphs, and therefore the striking of the 2nd paragraph was error.

We find no merit in this contention since appellant is asking that we distinguish between the two paragraphs due to the fact that the second paragraph asks for punitive damages. While it is true that this court recently upheld an award of punitive damages in a contract reformation action, it was stated at that time that the trial court, sitting in equity, had established fraud by the evidence and had awarded exemplary damages in conjunction with the reformation. Hedworth v. Chapman (1963), 135 Ind.App. 129, 133, 192 N.E.2d 649. One must bear in mind that in the above mentioned decision we stated that the upholding of the award required an extension of a minority holding. We feel that the rule of that case must be narrowly construed to apply only when the court, sitting in equity, finds fraud and in addition facts which positively require it in the interest of justice.

Therefore,...