35 Ind. App. 594 | Ind. Ct. App. | 1905
On the 5th day of August, 1900, appellant and appellee entered into a written contract, by the terms of which the former sold to> the latter certain real estate in the
Said contract contained the following provisions: “And in case of the failure of said party of the second part to pay the interest when due on the mortgaged indebtedness * * * assumed by her, or to make either of the twelve payments or any two subsequent payments due said party of the first part * * * this contract shall, at the option of the party of the first part, be forfeited and determined, and said party of the second part shall forfeit all payments made by her on this contract prior to such default, and such payments shall be retained by said party of the first part in full satisfaction and in liquidation of all damages by it sustained,” etc.
It is averred that the appellee failed and refused to pay the notes or the interest on the mortgage or taxes on said real estate, all of which, by the terms of said contract, she agreed to pay. The complaint then makes the following averments: “That, while said defendant so occupied said premises, she wilfully, maliciously, and without legal right, wrongfully removed and destroyed a part of the permanent improvements upon said real estate, to wit, a large stable situated thereon, of the value of $325, and a part of the fence enclosing said premises, of the value of $25, to the plaintifPs damage,” etc.
The cause was put at issue by the answer in two para
The facts specially found, and upon which the rights of the parties must be determined in this appeal, are that the appellee entered into possession of the real estate in controversy immediately after the execution of the contract between the parties; that she complied with all the conditions of the contract on her part until December 1, 1901, having paid up to that time thirteen of tire eighty-six instalments which she agreed to- pay, and the $75 cash stipulated in the contract; that in all other respects she complied with the contract up to that time; that in December, 1901, she failed and refused to pay the instalment then due, and also failed and refused to pay the semiannual interest on the mortgage, and that she never thereafter paid any sum according to the terms of the contract; that when she entered into' the possession of the premises there were a dwelling-house and out
As. conclusions of law the court stated: (1) “That the exercise of the option to forfeit the contract and to retain all payments made by the defendant was subject to the provisions of the agreement that the retention of such payments should constitute full satisfaction and be in liquidation of all the damages sustained by the plaintiff.” (2) “That the words ‘all damages,’ being general words used alone without any particular words of more limited meaning, should be construed most strongly against the party exercising an option to forfeit, and should be construed to include any and all damages existing at the time the forfeiture was claimed which arose out of any violation of the agreement, or out of any violation of any obligation arising from the legal relations between the parties created by the agreement, and should be construed to include any damage caused by reason of the removal of the barn as in the findings set forth.” (3) “That the plaintiff ought to take nothing by its suit herein, and that the defendant ought to recover of and from the plaintiff her costs and charges in this action laid out and expended.”
The findings show that appellant and appellee entered into' a written contract, by which the former agreed .to sell and the latter agreed to purchase certain real estate, and refers to the contract as “set out in the amended complaint,” but does not find what the terms and conditions of the contract were. The findings simply state that the. contract was “upon the terms and conditions therein stated.” It is also found that appellee entered into possession of the real estate; that, while in possession, her husband, with her consent, erected thereon a barn, in which to keep his horse, and for
By its second conclusion of law the court declared that the words “all damages” should be construed to include any and all damages existing at the time of the forfeiture, and should be construed to include any damage caused by the removal of the bam, etc. But we search the findings in vain to discover any fact or facts found by the court which throw any light upon the question of damages which the parties agreed upon in case of a declaration of forfeiture. And, as above stated, we can not look to the pleadings to determine the
Under the facts found, and upon the theory of the complaint, appellant was not entitled to recover. Judgment affirmed.