Albee Hammond Homes, Inc. v. Bicknese

252 N.E.2d 808, 146 Ind. App. 5, 1969 Ind. App. LEXIS 333
CourtIndiana Court of Appeals
DecidedDecember 1, 1969
DocketNo. 269A36
StatusPublished
Cited by1 cases

This text of 252 N.E.2d 808 (Albee Hammond Homes, Inc. v. Bicknese) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albee Hammond Homes, Inc. v. Bicknese, 252 N.E.2d 808, 146 Ind. App. 5, 1969 Ind. App. LEXIS 333 (Ind. Ct. App. 1969).

Opinion

Lowdermilk, P.J.

This appeal involves two causes of action which were consolidated for trial and were also consolidated for the purpose of this appeal by order of this court on March 11, 1969. The appellees, plaintiffs below, brought their [7]*7action on a written contract between themselves and the defendants below, appellants herein, Albee Hammond Homes, Inc., which was assigned number 65 PCC 256 in the Porter Circuit Court. Appellees raised the same cause of action against the appellants in a cross complaint in an action filed by appellants against appellees for defamation, which was assigned number 65 PCC 742 in the Porter Circuit Court.

Appellees’ complaint was in one legal paragraph asserting a written contract between themselves and appellants for erection of ten advertising billboards in No. 65 PCC 256. They alleged the same contract in a cross complaint in the companion case against Albee Homes, Inc., and in which cross complaint they claimed Albee Homes, Inc., was the real party in interest. These causes were placed at issue by appellants’ answer to both complaint and cross complaint by denial of appellee’s allegations.

Appellants filed their action number 65 PCC 742 in one legal paragraph asserting defendants-appellees had defamed them by causing a malicious, slanderous letter to be written. The issues were closed by appellees’ filing an answer in denial.

Trial was had by the court, which entered its special findings of fact and conclusions of law and entered judgment thereon against appellants on their complaint and in favor of appellees on their cause of action, and awarded appellees $9,083, plus $2,500 attorneys’ fees.

The special findings of fact and conclusions of law in cause number 65 PCC 256 reads as follows, to-wit:

“SPECIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
“The court at the request of the defendant ALBEE HAMMOND HOMES, INC. and the cross-defendant ALBEE HOMES, INC. makes the following Findings of Fact in this case and states Conclusions of law thereon as follows: (65-PCC-246)
[8]*8 Findings of Facts
“1. On April 17, 1963, there was entered into the following contract:
TO: Donald D. Bicknese Evelyn H: Bicknese Bi.ck Sign Company
Gentlemen:
' Albee Hammond Homes, Inc., R.R. #2, RT. U.S. 30, Crown Point hereby authorizes and directs you to paint and execute an advertising display at locations and at prices per month as indicated below, for Albee Hammond Homes, Inc., R.R. #2, U.S. 30, Crown Point, as per design to be mutually agreed upon, the specifications and more particular description of which said design are separately set out, signed by the parties attached hereto, and made a part hereof, in a first class workmanlike manner, using.the best materials now obtainable and to maintain the same for a period of Three (3) years.
Locations as agreed upon, per attached sheet agreement.
Void unless locations are signed and accepted by Joel Kaufman.
Note — All accounts are payable in 30 equal monthly payments, the first of which is due and payable upon the completion of the work on the selected locations. Last 6 months to be- paid in advance Total monthly charge $200.00 . . .
For the services specified herein Albee Hammond Homes, Inc., R.R. '#2, Rt. U.S. 30, Crown Point, Ind. agrees to pay monthly in advance to Donald D. Bicknese and Evelyn H. Bicknese, or to whomsoever they may designate and at any place that Donald D. Bicknese and Evelyn H. Bicknese may designate, the aggregate sum of the price per month indicated above. Upon the failure of Albee Hammond Homes, Inc., Crown Point,' Ind. to make any one of the monthly payments due under this agreement, Donald D. Bicknese and Evelyn H. Bicknese shall have the right to declare all of the remaining monthly payments provided by this agreement, due and payable without demand. The failure of Donald D. Bicknese and Evelyn H. Bicknese to exercise such right upon’ any default shall not be construed as a waiver of the right to so exercise such right upon any subsequent default.
“In the event of default of three monthly payments Albee Hammond Homes, Inc., R.R. #2, U.S. 30, Crown Point, Ind. [9]*9agrees that the entire balance specified in this contract shall immediately become due and payable and agrees to pay reasonable attorney fees and costs due to such non-payment.
“In the event that any of the above locations become lost during the life of this contract, or cannot be secured or in case at any time during the life of this contract any of the above displays are obstructed from view, or are wholly or partly destroyed or defaced, from any cause beyond your control, including the action of the natural elements, the happenings of any such events shall not act as a breach or termination of this contract, but such lost or obstructed displays shall be replaced at other locations to be mutually agreed upon, and such destroyed or defaced displays shall be restored to their former condition any such nonprocurable locations shall be replaced with other locations to be mutually agreed upon; and the amount of advertising lost or not delivered while such replacement of substitution is being made shall be made up in an equivalent amount of advertising at the expiration of this agreement or at the election of Albee Hammond Homes, Inc., the following month’s payment may be reduced to a pro-rated basis based on $20.00 per sign per month, for the time that any sign or signs is or are lost to advertising during the preceding month.
“It is agreed that Donald D. Bicknese and Evelyn H. Bicknese reserves the right to refuse or to alter any copy which said Donald D. Bicknese and Evelyn H. Bicknese may deem for any reason objectionable or undesirable.
“It is agreed that Albee Hammond Homes, Inc., Crown Point, Ind. shall in no manner be considered the owner or lessee of the advertising displays herein above mentioned and that Albee Hammond Homes, Inc., Crown Point, Ind. has no further right or control in or to the above advertising displays than are herein specified.
“For the above Albee Hammond Homes, Inc., Crown Point, Ind. hereby promises to pay to Donald D.’ Bicknese and Evelyn H. Bicknese the aggregate sum indicated above $7,200.00 Dollars, in monthly installments as above provided, beginning on the date of the completion of the painting of the selected displays and the rendering of bills therefor; we further agree to pay for any displays not painted by reason of failure on our part to furnish or approve copy within fifteen (15) days after the date'of this contract.
“It is expressly agreed that Donald D. Bicknese and [10]*10Evelyn H. Bicknese are not bound by any stipulations, representations, or agreements not embodied in this contract.
/s/ Joel Kaufman Address: 7718 Lincoln Hwy.
Crown Point, Indiana
ACCEPTED:
/s/ Donald D. Bicknese Donald D. Bicknese
/s/ Evelyn H. Bicknese Evelyn H. Bicknese
Address: 1116 Aetna St.

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Cite This Page — Counsel Stack

Bluebook (online)
252 N.E.2d 808, 146 Ind. App. 5, 1969 Ind. App. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albee-hammond-homes-inc-v-bicknese-indctapp-1969.