Christiansen v. HOCKEMA

181 N.E.2d 786, 133 Ind. App. 417, 1962 Ind. App. LEXIS 176

• Court: Indiana Court of Appeals
• Decided: April 18, 1962
• Docket: 19,341
• Status: Published

Opinions

Gonas, J.

Appellant filed a complaint in the trial court seeking to recover three thousand ($3,000.00) dollars, that she gave to appellees to hold in escrow, pursuant to an offer to purchase certain residential property which is located in West Lafayette, Indiana.

The complaint is in three (3) paragraphs. The first paragraph of complaint is for money had and received. The second paragraph of complaint sounds in conversion, and fraudulent inducement is the theory of the third paragraph of the complaint. Defendants filed joint answers in denial to each paragraph.

Evidence shows that appellant paid to the appellees, the sum of Five Hundred ($500.00) Dollars, earnest money deposit, and Twenty Five Hundred ($2500.00) Dollars as the balance of the down payment on the property here in question.

Appellant avers that she had no written contract and that she received no consideration for her offer, thus she sought to rescind said offer. Appellees argue that appellant has not shown a total failure to perform and that a deed was prepared and tendered, appellant and that she actually went into possession. Later said appellant changed her mind and wanted her money back.

Appellee contends that “where vendee pays part of the purchase money on a verbal contract for the purchase of real estate, he cannot refuse to accept a deed and recover the money paid.”

Appellees resold the property after appellant refused to complete the transaction. The record shows deed tendered, appellant in possession and abandonment of said property by appellant.

Trial was held without a jury.

The court entered judgment that the plaintiff-appellant here take nothing by reason of her complaint and assessed the costs against appellant.

Appellant moved the court for a new trial on the grounds that the decision of the court is not sustained by sufficient evidence, and the decision of the court is contrary to law. Said motion was overuled and that ruling is assigned as error.

Appellant argues that the decision of the court is not sustained by sufficient evidence; and the decision of the court is contrary to law. We may not consider the argument that the decision of the court is not sustained by sufficient evidence. Appellant had the burden of proof in the trial court and suffered a negative decision in that court. A negative decision may not be attacked on appeal, by the party who had the burden of proof in the trial court on the ground that such decision is not sustained by sufficient evidence. Metrailer v. Bishop, (1959), 130 Ind. App. 77, 162 N. E. 2d 94. This only leaves the argument that the decision of the court is contrary to law.

In determining whether or not the decision of the trial court is contrary to law, we must determine whether or not relief was denied appellant, to which she was entitled under the evidence. Metrailer v. Bishop, supra. As said in Pokraka v. Lummus Co. (1952), 230 Ind. 523, 532, 104 N. E. 2d 669;

“It is only where the evidence is without conflict and can lead to but one conclusion and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law. Losche & Sons v. Williams & Associates (1948), 118 Ind. App. 392, 78 N. E. 2d 447. . .”

In support of her argument that the decision is contrary to law, appellant argues that the decision is contrary,

(1) To the law requiring contracts for the sale of lands to be supported by writing and between competent parties;

(2) To the law of contracts permitting an offeror to withdraw his offer at any time before it is accepted by the party to whom it is made;

(3) To the law of contracts requiring the parties to comply with the express conditions of a written contract or be held liable in damage for the breach;

(4) To the law of agency requiring an agent to be loyal to a trust when dealing with the property of a principal;

(5) To the law of agency which holds an agent liable for conversion of the property of his principal to his own use;

(6) To the law of agency which prohibits an agent from dealing with his principal in a dual capacity, and benefiting from his deception;

(7) To the law as not sustained by sufficient evidence to show that, as an agent dealing with a principal, the defendant’s transaction was fair arid equitable, and

(8) To the law in failing to require the defendants to repay with interest the $3,000.00 had and received from the plaintiff and withheld from her without reason or cause and without her consent.

None of the foregoing specifications of argument are adequate to present the question as to whether or not the decision of the court is contrary to law. We have examined the evidence and find it to be in conflict on all the issues presented. Pokraka v. Lummus Co., supra.

The brief of appellant fails to establish that the evidence entitled her to relief which was denied her by the court’s decision.

Judgment affirmed.

Kelley, P. J., and Pfaff, J., concur.

Bierly, J., dissents with opinion.