Wallace v. Mertz
| Decision Date | 17 May 1927 |
| Docket Number | No. 12707.,12707. |
| Citation | 86 Ind.App. 185,156 N.E. 562 |
| Parties | WALLACE v. MERTZ et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Tippecanoe Circuit Court; Homer W. Hennegar, Judge.
Action by Roy W. Wallace against Carl O. Mertz, administrator of the estate of William Mertz, deceased, and another. Judgment for defendants, and plaintiff appeals. Reversed, with instruction.Jones, Davidson & Patrick and Randolph & Randolph, all of La Fayette, for appellant.
Gaylord & Sills and Joseph B. Ross, all of La Fayette, for appellees.
This is an action by appellant against appellees for breach of a written contract entered into between appellant and decedent, Mertz, and appellee Burt, whereby appellant agreed to lease certain premises owned by him to said parties upon the terms and conditions specified in said contract, and they in turn agreed to accept a lease of said premises from appellant. The action was originally filed as a claim against the estate of decedent, Mertz, and, upon such claim being disallowed by appellee Mertz, administrator of the estate of decedent, Mertz, the cause was transferred to the trial docket, and, upon motion of appellee Mertz, appellee Burt was made a party defendant thereto. Appellees filed separate and several demurrers to appellant's claim, which demurrers were sustained by the court, and final judgment rendered thereon against appellant, from which rulings and judgment this appeal; appellant assigning as error the court's ruling on the demurrers to the complaint. It is averred in the complaint, in substance: That in September, 1923, the decedent and Burt entered into a written contract with appellant, which reads as follows, to wit:
“September 27, 1923.
Ed Burt, William Mertz, La Fayette, Indiana-Gentlemen: Providing the agreement drawn up by Mr. J. B. Brady, which you have just read, can be completed, I propose to lease my garage building at Fourth and South streets to you for a period of five years upon the following terms:
You to pay $450 monthly rental in advance on the first of each month. Any change of alteration in the building to be subject to my written approval.
I retain 6 ft. x 10 ft. space in office near Fourth Street entrance and to retain the Indiana Refining Company lease; also one car space on first floor. Office and car space to be retained for entire term of lease. I also retain space occupied by paint shop until present orders are completed. I am to have one car space on second floor.
The machinery and equipment now in the building, attached or detached, belongs to the Wallace Motor Company and Brady Motor Company, and is not to be included in the lease. It is however agreed that you will take over certain Wallace Motor Company equipment, including everything on the list submitted to you at $3,250. One-half cash, balance 6 months note at 6 per cent.
This lease to be formally drafted and to contain the usual stipulations concerning the rights and remedies of all parties.
Very truly yours,
R. W. Wallace. [Appellant.]
Accepted: E. H. Burt. [Appellee.]
W. F. Mertz. [Decedent.]”
That the Brady agreement referred to in the contract had been drafted on September 27, 1923, and was read by the decedent and appellee Burt prior to the execution of such contract. That said Brady agreement was completed and executed on September 29 as drafted on September 27, 1923. That a copy thereof is by exhibit made a part of the complaint. That on September 29, 1923, the decedent and appellee Burt were notified, and had knowledge, that the Brady agreement had been executed. That, when the contract sued on was executed by the decedent and appellee Burt, they were then occupying the upper story of the building mentioned in said contract, and were occupying the office in said building and using the telephones therein; that the decedent and appellee Burt continued to occupy said premises, and after the above agreement of September 27th was executed and after the Brady agreement was executed. That appellant performed all the conditions and the requirements of such contract of September 27th on his part to be performed. That on or about October 3, 1923, after the contract sued on had been executed, and after the Brady agreement had been executed, the decedent and appellee Burt repudiated and renounced the entire contract sued on, refused to perform it, and moved out of, and abandoned, the premises. That, by reason of the repudiation and renunciation of said agreement and the abandonment of said premises, appellant was damaged in the total sum of $7,672.40, which damages are itemized in the complaint.
The Brady agreement reads:
“Sept. 29, 1923.
In consideration of the payment of $1,000 receipt of which is hereby acknowledged and of other considerations, R. W. Wallace, hereinafter known as the first party, J. B. Brady, hereinafter known as the second party, and Brady Motor Company hereinafter known as the third party agree that:
Whereas, first party now has opportunity of leasing the entire Wallace Motor Company Building, Fourth and South streets, La Fayette, Indiana, to the Burt-Mertz Company and therefore desires immediate possession of all that part of said building, lease for which is now held by Brady Motor Company, witnesseth:
1. The third party consents to and cancels its lease contract dated June 1, 1923, for said portion of said building upon condition that the first party purchase from second party, president of the Brady Motor Company, his 63 shares of stock of the Wallace Motor Company and assume the obligations as set forth in the agreement entered into by the stockholders of the Wallace Motor Company, dated May 29, 1923, and that his agreement be approved by all stockholders of the Wallace Motor Company.
2. Said J. B. Brady hereby sells said 63 shares of stock to and said R. W. Wallace hereby purchases said stock and assumes said obligations of said Brady, for and in consideration of said cancellation of said lease by the third party, and payment of $1,000 by second party.
3. First party will permit of signs announcing new location of Brady Motor Company to be placed on building of Wallace Motor Company for a period of one month after vacation of property.
4. First party will refer and require the Burt-Mertz Motor Company to refer all Nash business to the Brady Motor Company at its new location.
5. The Brady Motor Company will give possession of the Wallace Motor Company building within ten days after securing possession of suitable new quarters, and in no case later than Dec. 1, 1923. Rent to cease on vacation of premises.
6. This agreement to be approved by the stockholders of the Wallace Motor Company.
Approved:
Stockholders of Wallace Motor Co.
R. W. Wallace.
Brady Motor Company,
J. B. Brady, Pres.
J. B. Brady.”
[1][2][3] It is appellees' contention that the letter from appellant to Burt and Mertz, together with the acceptance indorsed thereon, was but a conditional proposal, and that it amounted only to a preliminary negotiation looking to the possible execution of a lease, and that no one was bound by it. In other words, that it did not constitute a contract; that it was too uncertain and indefinite, that it did not contain mutual promises, and was void for the want of mutuality of obligation; and that the complaint did not show performance by appellant and breach by Burt and Mertz. It is the law that, in order that a contract be valid and enforceable, it must be reasonably definite and certain, so that the intention of the parties can be ascertained. But courts will not declare contracts entered into in good faith void and unenforceable when their meaning can be determined by recognized and reasonable rules of construction, and, if the contract be capable of a construction that will uphold it, it is to be adopted rather than one which will defeat it. Schreiber v. Butler, 84 Ind. 576.
[4] In the letter, the acceptance of which appellant contends constitutes the contract, there is a direct reference to the Brady agreement with the statement that appellees had just read the same, and with a provision as to the completion of such Brady agreement. It is a well-established rule of construction that, where instruments under present consideration relate to the same subject-matter, they must be taken as parts of the same...
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...parties may be said to have agreed to make an agreement, but such an agreement is unenforceable in the courts. Wallace v. Mertz, 86 Ind.App. 185, 191, 156 N.E. 562 (1927). Until the parties agreed on the fundamental and material items basic to the agreement, there was no enforceable contrac......
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