45 N.E.2d 337 (Ind.App. 1942), 16874, Montgomery Ward & Co. v. Guignet

Docket Nº:16874.
Citation:45 N.E.2d 337, 112 Ind.App. 661
Case Date:December 22, 1942
Court:Court of Appeals of Indiana

Page 337

45 N.E.2d 337 (Ind.App. 1942)

112 Ind.App. 661




No. 16874.

Appellate Court of Indiana, in Banc.

December 22, 1942

Page 338

         John A. Barr and L. E. Oliphant, Jr., both of Chicago, Ill., Ora L. Wildermuth, of Gary, and Francis H. Monek, of Chicago, Ill., for appellant.

         Thorpe, Bamber & Harrison, of Hammond, for appellee.

         STEVENSON, Judge.

         The appellee on May 5, 1938, brought this action against the appellant to recover damages. His complaint was in two paragraphs. The first paragraph of complaint alleged generally that the appellant was a corporation authorized to do business in Indiana, and was engaged in the operation of many retail stores for the sale of merchandise. The complaint alleged that for the purpose of stimulating the activities of store managers employed by the appellant, it had adopted and maintained a bonus plan in favor of such store managers, which provided that they should receive at the end of each year, in addition to their stipulated salary, a bonus in the amount of eight per cent of the net profit of the store so operated by such manager.

         The appellee alleged that on the 29th day of February, 1936, he was employed as store manager for appellant store in Jackson, Michigan. Under his management for the year 1936 such store showed a net profit of $21,000, and for 1937 a net profit of $25,000.

         The complaint further alleged that on the 30th day of October, 1937, and before the end of the fiscal year of 1937, the appellant wrongfully and without cause or reason terminated the appellee's employment, and refused to pay him his bonus for the year 1937. He accordingly prayed judgment for $2,000.

         The second paragraph of the complaint alleged substantially the same facts but contained the additional averment that it was mutually agreed between the appellee and the appellant at the time he was employed that he would be permanently employed so long as he well and faithfully performed all of his duties as store manager. The appellee alleged that this contract of permanent employment has been wrongfully breached, for which breach he prays damages in the sum of $50,000.

         To this complaint, the appellant filed an answer in two paragraphs. The first paragraph was in general denial, and the second paragraph was by way of set-off or counterclaim. This paragraph alleged that the appellee was indebted to the appellant for $199.10 for merchandise purchased by him, and for which amount they prayed judgment.

         Replies of general denial to this affirmative paragraph of answer closed the issues. The case was submitted to a jury for trial, and at the close of the evidence the appellant moved for a directed verdict. This motion was overruled, and the jury, after being instructed by the court, returned a verdict for the appellee on paragraph one of his complaint and assessed his damages in the sum of $1,734. The jury also returned a verdict on paragraph two of the appellee's complaint, and assessed his damages in the sum of $2,412. The court instructed the jury to return a verdict for the appellant on its counterclaim in the sum of $199.10, which action is unchallenged.

         A motion for new trial was filed by the appellant and overruled, and this appeal has been perfected. The error assigned on appeal is: The court erred in overruling the appellant's motion for a new trial.

         Under this assignment of error, the appellant contends that the verdict of the jury is not sustained by sufficient evidence.

         In support of this assignment, the appellant contends that the only right of the appellee to recover a bonus is based upon the provisions of the appellant's store operations manual, which was the only bonus plan in operation during the period of appellee's employment. The appellant accordingly contends that under the provisions of this manual the appellee cannot recover a bonus in the event his employment is terminated during the fiscal year. The provisions of the store operations manual, as offered in evidence, disclosed the following clauses:

"'c. No rights to a fixed or definite term of employment are conferred by the bonus plan. The company reserves the right to terminate employment without advance notice, whether such termination be for cause or otherwise.

"'d. If the Manager's services are terminated either by the company or by the

Page 339

manager, the manager forfeits his right to a bonus for the entire year in which his services are terminated.

"'k. No bonus arrangements other than the foregoing shall be binding on the company unless in writing and bearing written approval of an officer of the company."'

         As a part of the appellee's evidence in support of his case in chief, the parties then entered into the following stipulation:

"'It is stipulated and agreed between the counsel that the defendant has a bonus plan as set out in its Store Operating Manual and that, according to said plan, the bonus as applicable to the Jackson, Michigan, store would be figured on the basis of 8% of 85% of the net profit of the store for each fiscal year; and if the plaintiff is entitled to a bonus in this case, the bonus would be computed in accordance with the above percentages."'

         In the light of the provisions of this operations manual, and in the light of the stipulation, the question presented to us is whether...

To continue reading