Skendzel v. Marshall

261 Ind. 226, 301 N.E.2d 641 (1973)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Burkowski entered a land sale contract as seller with the Marshalls (D) in 1958. The sale price was $36,000, $2500 of which was payable on or before the 15th of January every year. The contract also contained a liquidated damages provision which stated that, in the event of a default which continued for more than 30 days, all money paid under the contract at the time of default would be forfeited at the seller's option. Burkowski made payments under the contract until her death in 1963. Further payments were made in the two years following her death. At the time of the last payment, $15,000 was still outstanding on the contract price. The Skendzels (P) were assigned Burkowski's interest in the land in 1968 from the executrix of Burkowski's estate. A year after the assignment, P filed suit, attempting to enforce the forfeiture provision in the contract. D raised the affirmative defense of waiver. The lower court found that the defense was not applicable: although waiver can be established when a seller accepts late or irregular payments on a land sale contract, and although Burkowski did make irregular payments, the payments were always early. After Burkowski's death, the 1964 and 1965 payments were made late and accepted. The court, therefore, found that, after the 1966 payment was late as defined in the default provision, P could have declared a forfeiture. The judgment went to D. Ps appealed from an adverse judgment and the Court of Appeals reversed the trial court's judgment. Ds appealed from the judgment of the appellate court.