Kenefick v. Schumaker
64 Ind. App. 552 · Indiana Court of Appeals · 1917
Facts
Appellants William H. and Mary Kenefick owned real estate in Michigan City, Indiana, with a dwelling and a saloon, which they contracted to sell to appellees on January 14, 1914. The contract required appellants to convey by warranty deed and furnish a complete abstract of title by specific dates, and to give possession by February 1, 1914, with time being of the essence and $1,000 liquidated damages for breach. Appellants delivered possession of the saloon on January 17, 1914, but due to a tenant, could not deliver the dwelling until February 20, 1914, which appellees accepted. Appellants tendered an abstract on January 26, 1914, which appellees initially refused to examine, but later sent to their attorney who raised minor objections regarding certifications. Appellants rectified these issues, but appellees ultimately refused to complete the purchase on April 15, 1914, vacating the premises and citing the abstract's condition as not showing clear title, having only paid $200 of the $6,000 purchase price.
Procedural history
Appellants sued appellees for $1,000 liquidated damages for breach of a real estate sale contract, and appellees counterclaimed for $3,000 for breach of the same contract. The trial court found that neither party was entitled to recover and that each should pay their own costs. Appellants excepted to this conclusion and moved for a new trial, which was overruled, leading to this appeal.
Issue
Did the appellees waive the appellants' breach regarding the delayed delivery of dwelling possession, and did the abstract furnished by appellants show a marketable title as required by the contract, entitling appellants to recover for breach?
Holding
The court held that the appellees waived the breach concerning delayed possession and that the abstract furnished by appellants did show a marketable title. Therefore, the lower court's judgment that appellants were not entitled to recover was reversed, and a new trial was granted.
Rule
Waiver occurs when a party, with full knowledge of material facts, acts inconsistently with a right or intent to rely on it, thereby precluding them from claiming it later. Performance within a contract's specified time can be waived by conduct, such as recognizing the contract as subsisting or continuing negotiations. A marketable title is free from reasonable doubt, allowing peaceful possession and sale without fear of flaws, and is not defeated by mere shadows or remote possibilities, but by probabilities. Defects that are not serious and do not affect possessory title do not render a title unmarketable.
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