General Discount Corp. v. Weiss MacHinery Corp. , 437 N.E.2d 145 ( 1982 )

HOFFMAN, Presiding Judge.

This cause of action began when General Discount Corporation sued for replevin and damages occurring due to the breach of certain conditional sales contracts, and notes, secured by security agreements which were assigned to General Discount by Weiss Machinery Corporation and Weiss Sales and Leasing, Inc. (hereinafter collectively referred to as Weiss). Edward Weiss guaranteed the performance of the contracts and notes. The parties entered into an agreed judgment which provided:

“AGREED JUDGMENT

By agreement of the Plaintiff, by Counsel, and the Defendants, Weiss Machinery Corporation and Weiss Sales and Leasing, Inc., and Edward Weiss, it is agreed, stipulated, ordered and adjudged as follows:

1. Plaintiff has received the sum of $21,844.83 from the Defendants, Weiss Machinery Corporation and Weiss Sales and Leasing, Inc., in full satisfaction of the debt owed to Plaintiff by said Defendants, as evidenced by Exhibits ‘A’ through and including ‘E\ In exchange for said sums Plaintiff has delivered to said Defendants the certificates of title on the equipment described in Exhibits ‘A’ through ‘E’.

2. It is further agreed, ordered and adjudged that the Defendants, Weiss Machinery Corporation and Edward Weiss will deliver the following described security to Plaintiff by delivering said security to S. & H. Contractors, Walton, Kentucky prior to 5:00 P.M., July 29, 1980:

One (1) 1978 CaseModel 580-C Tractor/Loader/Backhoe, Serial Number 8966113

One (1) 1978 General 9 DOW Lowboy Trailer, Serial Number 9D7853

One (1) Ford Single Axle Dump Truck, Model 611C, Serial Number F61CCE2229

One (1) 1978 Case 580C Tractor/Loader/Backhoe Serial # 8972520 with extenda Hoe and 4 in 1 Bucket

One 1978 Case 380 General Purpose Tractor Serial # 11009879

One (1) Case 450E Crawler/Dozer Serial # 3066895 with Power Angle Tilt

Failure to deliver said security by 5:00 P.M., July 29, 1980 will constitute a default of this agreed judgment and the settlement provisions of this paragraph and of paragraph three below will be null and void, entitling Plaintiff to immediate possession of said security and requiring said Defendants to immediately deliver said equipment to said Plaintiff at S. & H. Contractors, Walton, Kentucky. In addition, Plaintiff will be entitled to collect the full amount set forth in paragraph three below including interest, attorney fees, expenses, and court costs.

3. It is further agreed, ordered and adjudged, that Plaintiff shall recover of the Defendants, Weiss Machinery Corporation and Edward Weiss, the sum of $55,589.21 plus interest at the rate of 12% per annum from July 31, 1980 until paid, plus the additional sum of $2,800, attorney fees, plus miscellaneous expenses of $3,335.00 and court costs. This paragraph will be considered paid in full upon receipt by Plaintiff’s counsel at 426 Bank Street, New Albany, Indiana 47150 of the sum of $55,589.21 on or before 12:00 Noon, the day of August 11, 1980. Upon receipt of said payment, Plaintiff will deliver a termination statement terminating Plaintiff’s security interest in the following described equipment:

One (1) 1978 Case 580C Tractor/Loader/Backhoe Serial # 8974643 with Extenda-A-hoe, 4 in 1 bucket and enclosed cab

One (1) 1978 Case 450 Crawler Dozer Serial # 3067003 with Power Angle Tilt Blade, ROPS Canopy, Side Panels, and Lock-Up Kit

Failure to pay the sums set forth above, or to perform any part of this agreed judgment will constitute a default herein and the settlement provisions of this paragraph and paragraph two above will be null and void, entitling Plaintiff to collect the full amounts set forth above, including interest, attorney fees, expenses and court costs, and requiring said Defendants to immediately deliver possession of the equipment described above to Plaintiff at S. & H. Contractors, Walton, Kentucky.

4. It is further agreed, ordered and adjudged that the counterclaim of the Defendants against the Plaintiff is dismissed with prejudice.”

Record at 68-69.

General Discount alleged that Weiss breached the provisions of the agreed judgment by failing to deliver certain pieces of equipment within the time frame specified, and General Discount filed a motion requesting the court to enter the agreed judgment and enforce its default provisions. The court sustained General Discount’s motion and entered the agreed judgment.

Weiss filed a motion to correct errors after the court’s entry of the agreed judgment. The motion was overruled, and the court entered an order entitling General Discount to recover $55,589.21 plus interest thereon at 12% per annum from July 31, 1980 until paid, plus attorney fees, expenses, and court costs. Weiss then filed a praecipe but failed to pursue the appeal.

Subsequently Weiss filed a petition for declaratory relief for an interpretation of the agreed judgment. The trial court entered the following findings and judgment:

“Comes now the plaintiff, by counsel, comes now the defendants, in person and by counsel, and both parties consent and agree to allow said defendants to file his [sic] Petition for Declaratory relief for the purpose of interpreting the Agreed Judgment in the above cause of action.

“And the Court having heard the evidence, and having taken this matter under advisement and reviewing the record, therefore being fully and sufficiently advised in the premises, now finds the following facts:

1. The Court finds that the above parties entered into an Agreed Judgment in the above cause said agreed judgment presented to the Court on or about the 29th day of August, 1980.

2. The Court further finds that, pursuant to said Agreed Judgment, the plaintiff has received the sum of Twenty One Thousand Eight Hundred Forty Four and Eighty Three Cents ($21,844.83) from the defendants, in full satisfaction of a debt owed to plaintiff by said defendant, as evidenced by Exhibits ‘a’ through and including ‘e’.

3. That the Court further finds that in exchange for said sum, the plaintiff has delivered unto said defendants the certificates of title on equipment described in Exhibits ‘a’ through ‘e\

4. The Court further finds that on July 28, 1980, and on July 29, 1980, the defendants delivered the following described security unto plaintiff:

1. One (1) 1978 Case Model 580-C Tractor/Loader/Backhoe, Serial Number 8966113

2. One (1) 1978 General Nine (9) Dow Lowboy Trailer, Serial Number 9D7853

3. One (1) 1969 Ford Single Axle Dump Trpck, Model 611C, Serial Number F61CCE02229

4. One (1) 1978 Case 580C Tractor/Loader/Backhoe, Serial Number 8972520 with extenda Hoe and Four (4) in One (1) Bucket

5. One (1) 1978 Case 380C General Purpose Tractor, Serial Number 11009879

6. One (1) Cast [sic] 450E Crawler/Doz-er, Serial Number 3066895 with Power Angle Tilt

5.The Court further finds that the delivery of the above described equipment is in substantial compliance with the purpose of said agreed judgment, executed between the parties.

6. The Court further finds that, at the time said defendants delivered unto said plaintiff the one (1) 1978 Cast [sic] 580C Tractor/Loader Backhoe, Serial Number 8972520 with extenda hoe and four (4) in One (1) Bucket, said defendants, by a good faith mistake, tendered unto said plaintiffs [sic] two (2) additional buckets, other than the original Four (4) in One (1) Bucket.

7. The Court further finds that the defendants, by good faith mistake, had failed to deliver said Four (4) in . One (1) Bucket/Loader bucket unto the Plaintiff due to the fact that said Four (4) in One (1) Bucket had been repossessed from a third party, and subsequently was put into defendants’ inventory, without the knowledge of said defendant, Edward Weiss.

8. The Court further finds that, upon knowledge and notice unto said defendants of the mistaken Four (4) in One (1) Bucket, that said defendants sent and delivered the proper Four (4) in One (1) Bucket unto said plaintiff on September 8, 1980.

9. The Court further finds that said defendants replaced the proper Four (4) in One (1) Bucket without any formal judicial process brought by said plaintiff against said defendants to compel same.

10. The Court further finds that the mistake, concerning the delivery of the Four (4) in One (1) Bucket by the defendants was rectified by said defendants within forty (40) days of the initial delivery.

11. The Court further finds that said plaintiff has failed to show any immediate or substantial loss incurred by the failure of defendants to deliver the said Four (4) in One (1) Bucket prior to September 9, 1980.

12. The Court further finds, that pursuant to the Agreed Judgment between the parties, the defendants offered to tender unto the plaintiff and plaintiff’s counsel, a bank draft in the amount of Fifty Five Thousand Five Hundred Eighty Nine Dollars and Twenty One Cents ($55,589.21) pri- or to August 11,1980, per the Agreed Judgment.

13. The Court further finds that on or before August 11, 1980, the plaintiff, contrary to the Agreed Judgment, wrongfully failed to accept the defendants’ tender of the Fifty Thousand [sic] Five Hundred Eighty Nine Dollars and Twenty One Cents ($55,589.21) bank draft in breach of the Agreed Judgment.

14. The Court further finds that the plaintiff, in breach of said Agreed Judgment, wrongfully failed to deliver a termination statement terminating plaintiff’s security interest in a certain 1978 Case 580C Tractor/Loader/Backhoe, Serial Number 8974643 with Extenda-A-Hoe, four (4) in one (1) bucket and enclosed cab; and a certain 1978 Case 450 Crawler Dozer, Serial Number 3067003 with Power Angle Tilt Blade, Rops Canopy, Side Panels, and Lockup Kit, at said time on or before August 11, 1980, when defendants offered the tender of said bank draft unto said plaintiff.

15. The Court further finds that on or about November 7, 1980, said defendants deposited with the Clerk of Delaware County, the amount of Fifty Five Thousand Five Hundred Eighty Nine Dollars and Twenty One Cents ($55,589.21) as a bond for said amount which was wrongfully refused by said plaintiff, on or about August 11, 1980.

16. The Court further finds that said bond posted with the Clerk of Delaware County, was subsequently ordered released unto the possession of said plaintiff.

17. The Court finds that, as delineated above, both parties have been in breach of the Agreed Judgment.

18. The Court further finds that the extent of nonperformance by the defendants, under the Agreed Judgment is minor when weighed in light of the full value of performance tendered by said defendants unto the plaintiff.

19. The Court further finds that the extent of nonperformance by the defendants under the Agreed Judgment did not defeat the purpose of said Agreed Judgment.

20. The Court further finds that the defendants were not guilty of a willful, deliberate or intentional breach of said Agreed Judgment.

21. The Court further finds that the plaintiff’s breach of said Agreed Judgment was substantially greater than that of the defendant’s [sic] breach of said Agreed Judgment.

22. The Court further finds that said defendants substantially performed their duties and obligations as required by said Agreed Judgment.

23. The Court further finds that the defendants substantially complied with their duties and obligations as required by said Agreed Judgment.

24. The Court further finds that in light of the circumstances as delineated above, that said plaintiff is entitled to Twelve percent (12%) interest on the amount of Fifty Five Thousand Five Hundred Eighty Nine Dollars and Twenty One Cents ($55,589.21) from the period of August 11, 1980 to November 7, 1980, the time which defendants deposited said bond with the Clerk of the Court.

25. The Court further finds that the amount of the interest to be paid by said defendants unto said plaintiff during this period is in the amount of One Thousand Six Hundred Sixty Seven Dollars and Sixty Eight Cents ($1,667.68).

26. The Court further finds that said defendants shall tender unto said Plaintiffs [sic] the amount of Three Thousand ($3,000.00) Dollars for attorneys [sic] fees, miscellaneous expenses and other costs incurred by said Plaintiffs [sic].

27. The Court further finds that the Plaintiffs [sic] shall tender unto the defendants the two (2) buckets in Plaintiff’s possession at that time which the defendants tender unto said Plaintiffs [sic] the amount of One Thousand Six Hundred Sixty-seven Dollars and Sixty-eight Cents ($1,667.68) in interest and Three Thousand ($3,000.00) Dollars for attorney’s fees, miscellaneous expenses, and other costs.

28. The Court further finds that the above delineated relief is to be the full and complete relief of the parties under the circumstances of performance pursuant to the agreed judgment.

29. The Court further finds that said Plaintiff is not entitled to full relief as requested by the Plaintiff from the defendant, as said full relief would be unequitable and unreasonable under the circumstances of performance by the parties pursuant to the Agreed Judgment.

“IT IS THEREFORE NOW ORDERED, ADJUDGED AND DECREED by the Court, on judgment upon said findings, the following:

1. That the amount of the interest to be paid by said defendants unto said plaintiff during this period is in the amount of One Thousand Six Hundred Sixty Seven Dollars and Sixty Eight Cents ($1,667.68).

2. That said defendants shall tender unto said Plaintiffs [sic] the amount of Three Thousand ($3,000.00) Dollars for attorneys [sic] fees, miscellaneous expenses and other costs incurred by said Plaintiffs [sic],

3. That the Plaintiffs [sic] shall tender unto the defendants the two (2) buckets in Plaintiff’s possession at that time which the defendants tender unto said Plaintiffs [sic] the amount of One Thousand Six Hundred Sixty Seven Dollars and Sixty Eight Cents ($1,667.68) in interest and Three Thousand ($3,000.00) Dollars for attorney’s fees, miscellaneous expenses and other costs.

4. That the Plaintiff shall tender and deliver unto defendants a termination statement terminating Plaintiff’s security interest in a 1978 Case 580C Tractor/Loader/Backhoe Serial Number 8974643 with Extenda-A-Hoe, Four (4) in One (1) Bucket and enclosed cab; and a 1978 Case 450 Crawler Dozer Serial Number 3067003 with Power Angle Tilt Blade, ROPS Canopy, Side Panels, and Lock up Kit, at that time which the defendants tender unto the said Plaintiff the amount of One Thousand Six Hundred Sixty Seven Dollars and Sixty Eight Cents ($1,667.68) in interest and Three Thousand ($3,000.00) Dollars for attorney’s fee, miscellaneous expenses, and other costs.

“Costs versus the defendants.

“So ordered this 3rd day of August, 1981.”

Record at 158-162.

General Discount brought this appeal from the above order alleging that the entry of the agreed judgment constituted the final, appealable judgment in this case, and the petition for declaratory relief was an improper action. However, this argument appears for the first time in General Discount’s brief on appeal. No mention is made in its motion to correct errors that the order was the result of an improper action. Failure to include an issue in the motion to correct errors waives that issue on appeal.

Ind.Rules of Procedure, Trial Rule 59(D); Ind.Rules of Procedure, Appellate Rule 8.3(A)(7).

Furthermore, General Discount did not object to the petition for declaratory relief either before or during the proceedings. The trial court found that the parties consented to the action and the record discloses that during the hearing, counsel for General Discount stated:

“Now the Defendant has gone and gotten another attorney and come up with this declaratory action which is not, in my legal opinion, has not been properly brought before the Court, ah-h-h, but in an effort to resolve this matter, we’ve— we’ve permitted it to occur.” (Emphasis added.)

Record at 241-242.

General Discount cannot allege at this point in time that the action was error.

General Discount also contends that the agreed judgment required complete compliance with the terms thereof and it was error for the trial court to measure the compliance of the parties by a standard of “substantial compliance.” To support this argument, General Discount cites cases which hold that consent judgments cannot be attacked by the parties who consented.

Weiss did not once dispute the content of the agreed judgment. Rather, Weiss sought an interpretation of the judgment and whether there had been compliance. Courts of this state have for a very long time had the power, both inherent and statutory, to entertain actions to determine whether a judgment has been carried out and satisfied. Wilson v. Wiison (1976), 169 Ind.App. 530, 349 N.E.2d 277. This is precisely what Weiss petitioned the court for: a determination of exactly what the judgment meant and whether it had been complied with.

Agreed judgments have been characterized by Indiana courts as being contractual in nature. A consent judgment does not represent the judgment of the court. The court merely performs the ministerial duty of recording the agreement of the parties.

See State v. Heslar, Extrx. (1972), 257 Ind. 625, 277 N.E.2d 796; State v. Huebner (1952), 230 Ind. 461, 104 N.E.2d 385.

Contract law has long recognized substantial performance rather than strict performance as being sufficient in many contractual situations. We see no reason why the standard should not be applied to the contractual situation of a consent judgment.

In the case at bar the trial court found that the nonperformance by Weiss was minor, was not willful, and did not defeat the purpose of the judgment. In fact, the court found that both parties had breached the agreed judgment and the nonperformance by General Discount was substantially greater than that of Weiss. This is a prime example of a situation where a court has correctly applied the factors in determining whether the doctrine of substantial compliance is appropriate and has reached the correct result.

For the foregoing reasons, the trial court is affirmed.

Affirmed.

GARRARD, J., concurs. STATON, J., dissents with opinion.