FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
MAGGIE L. SMITH LARRY L. EATON
Sommer Barnard Ackerson Versailles, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FRANK WENNING, )
)
Appellant-Petitioner, )
)
vs. ) No. 69A05-0401-CV-54
)
LOTTIE CALHOUN, )
)
Appellee-Respondent. )
APPEAL FROM THE RIPLEY SUPERIOR COURT
The Honorable James B. Morris, Judge
Cause No. 69D01-0210-SC-617
May 20, 2005
OPINION ON REHEARING - FOR PUBLICATION
KIRSCH, Chief Judge
Frank Wenning and Lottie Calhoun both petition for rehearing from our decision in
which we ordered the parties’ contract rescinded, raising various arguments. On further
consideration, we grant rehearing.
FACTS AND PROCEDURAL HISTORY
We set out the following facts in our original opinion:
“Wenning owned acreage in Ripley County, Indiana. In 2001, he fell behind
on his mortgage payments and needed to raise cash. In December, he
entered into an oral agreement to sell three acres to Calhoun, the wife
of his nephew, for $9,000.00, which she was to pay the following month
from a settlement that she anticipated. Calhoun moved a mobile home onto
the property, arranged to have utilities connected, and built a driveway.
The following month, Calhoun learned that she would not be receiving the settlement,
so she agreed to get financing for the purchase price from a bank.
The parties therefore executed a written agreement (the “Contract”) for the sale
of the three acres on January 19, 2002. Like the parties’ oral
agreement, the Contract did not describe the land being conveyed. It stated:
“To Whom it May Concern!
I, Frank Wenning, am saleing [sic] 3 acres of 28 acres to Lottie
Calhoun with opion [sic] to buy more if desired.
I am saleing [sic] at $3,000 a [sic] acre for a total of
$9,000.
She has made a payment of $1,200.00 for Dec. 1, 01 to March
15
th 2002 at $350.00 a month until [sic] paid in full or Settlement
is received then will pay off in full.
Lottie Calhoun has already had El, water, & phone services ran [sic] to
5910 W. Fairground Rd. Osgood, Ind. 47037 & Lottie & Dewain Calhoun are
Living on the 3 acres at this time.
Appellant’s Appendix at 7.
Calhoun was unable to obtain a loan for the purchase price, but she
paid Wenning $500 in February 2002 and continued to make monthly payments of
$350.
In October 2002, Wenning filed a complaint asking the trial court to award
him immediate possession of the land. Calhoun counterclaimed for specific performance.
In December 2002, the trial court conducted a bench trial and thereafter entered
its judgment ordering Wenning to specifically perform the Contract. Wenning now appeals.”
Wenning v. Calhoun, 811 N.E.2d 933, 934-35 (Ind. Ct. App. 2004).
DISCUSSION AND DECISION
Wenning and Calhoun each petition for rehearing. In our original opinion, we
agreed with Wenning that the description of the land in the Contract was
too indefinite to be specifically enforced. We went on, however, to “rescind”
the Contract and ordered Wenning to return all of the amounts Calhoun expended
in reliance on the parties’ agreement, including money she spent to have utilities
connected and a driveway constructed.
We realize, in hindsight, that our analysis bears further consideration. We still
hold that the Contract is too indefinite to be specifically enforced and reaffirm
the portion of our original opinion so stating. However, we return to
basic principles of contract law.
In order to be enforceable, a contract must be reasonably definite and certain
in its material terms so that the intention of the parties may be
ascertained.
Berkel & Co. Contractors, Inc. v. Palm & Assocs., Inc., 814
N.E.2d 649, 655 (Ind. Ct. App. 2004); Kokomo Veterans, Inc. v. Schick, 439
N.E.2d 639, 644 (Ind. Ct. App. 1982); see also Wolvos v. Meyer, 668
N.E.2d 671, 675 (Ind. 1996) (enforcement of incomplete or ambiguous writing creates substantial
danger court will enforce something neither party intended). The “contract must ‘provide
a basis for determining the existence of a breach and for giving an
appropriate remedy.’” McLinden v. Coco, 765 N.E.2d 606, 613 (Ind. Ct. App.
2002) (quoting Restatement (Second) of Contracts § 33(2) (1979)).
Similarly, equity will not decree specific performance of a contract that is vague,
indefinite, and uncertain. Spinsky v. Kay, 550 N.E.2d 349, 351 (Ind. Ct.
App. 1990), trans. denied. It may, however, in the furtherance of justice,
compel a party to do that which in equity ought to have been
done, and which was in contemplation of the parties as expressed in their
contract. Estate of Hann v. Hann, 614 N.E.2d 973, 978 (Ind. Ct. App.
1993).
Applying these principles, we find that this Contract fails as a matter of
law because it is too indefinite in its essential terms. Specifically, the
subject matter of the Contract, i.e., the exact parcel of property to be
sold, is not identifiable from the terms of the Contract. The court
cannot re-write and then enforce contracts, which, to the knowledge of the court,
the parties themselves did not enter into. Indiana Kentucky Elec. Corp. v.
Green, 476 N.E.2d 141, 145 (Ind. Ct. App. 1985), trans. denied; Tastee-Freez Leasing
Corp. v. Milwid, 173 Ind. App. 675, 678, 365 N.E.2d 1388, 1390 (1977);
Bd. of Dir. Ben Davis, Etc. v. Cloverleaf Farms, Inc., 171 Ind. App.
682, 687, 359 N.E.2d 546, 549 (Ind. Ct. App. 1977).
Nonetheless, restitution, in the form of quasi contract, is available to the court
if no contract exists. 1 Corbin on Contracts §§ 1.20, 4.1 (1993).
Quasi contracts, also known as contracts implied in law, are not contracts
in the true sense. Savoree v. Indus. Contracting & Erecting, Inc., 789
N.E.2d 1013, 1017-18 (Ind. Ct. App. 2003); Indianapolis Raceway Park, Inc., v. Curtiss,
179 Ind. App. 557, 559, 386 N.E.2d 724, 726 (1979). Instead,
[t]hey rest on a legal fiction imposed by law without regard to assent
of the parties. They arise from reason, law, and natural equity, and
are clothed with the semblance of contract for the purpose of a remedy.
No action can lie in quasi contract unless one party is wrongfully
enriched at the expense of another.
Roberts v. ALCOA, Inc., 811 N.E.2d 466, 475 (Ind. Ct. App. 2004); Savoree,
789 N.E.2d at 1018; Indianapolis Raceway Park, 179 Ind. App. at 559, 386
N.E.2d at 726. Specifically, to recover under a quasi-contract theory, the plaintiff
must show, (1) a benefit was rendered to the party sought to be
charged, (2) at that party’s implied request, and (3) under circumstances in which
equity should demand that the person receiving the benefit should compensate the other
in order to prevent unjust enrichment. Knowles & Assocs. LLC v. Cook,
784 N.E.2d 1063, 1066 (Ind. Ct. App. 2003), Kody Eng’g Co., Inc. v.
Fox & Fox Ins. Agency, Inc., 303 N.E.2d 307, 309, 158 Ind. App.
498, 503 (Ind. Ct. App. 1973).
In this case, we believe that injustice can only be avoided by the
invocation of such a quasi-contract remedy. Wenning would be unjustly enriched by
the retention of Calhoun’s payments beyond the reasonable rental value of the property
for the months she occupied it. Likewise, Calhoun should be reimbursed for
monies she expended in reliance on the Contract.
We may analogize this situation to a contract for the sale of goods
that is unenforceable for indefiniteness. In such a case, the buyer must
return any goods that it has received or, if unable to do so,
must pay their reasonable value at the time of delivery and the seller
must return any portion of the price already paid. E. Allan Farnsworth,
Farnsworth on Contracts § 3.30 (3d ed. 2004). Here, the Contract, though
for land rather than goods, fails for indefiniteness. Accordingly, Calhoun must forego
any claim on the land, but must pay the reasonable value of her
occupation of the land until now. Wenning must return any payments Calhoun
made under the Contract.
We therefore hold that Wenning must return all money to Calhoun that she
expended acting on the purported Contract. Furthermore, we hold that Calhoun must
pay Wenning the fair market value for the rental of the property for
the time period during which she occupied the property, to be determined by
the trial court.
Affirmed in part, reversed in part, and remanded.
NAJAM, J., and RILEY, J., concur.