Louisville, N.A.&C. Ry. Co. v. Barnes
| Decision Date | 21 October 1896 |
| Citation | 16 Ind.App. 312,44 N.E. 1113 |
| Court | Indiana Appellate Court |
| Parties | LOUISVILLE, N. A. & C. RY. CO. v. BARNES. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Clark county; George H. D. Gibson, Judge.
Action by Frank Barnes against the Louisville, New Albany & Chicago Railway Company for services. From a judgment in favor of plaintiff, defendant appeals. Reversed.
E. C. Field, M. Z. Stannard, and W. S. Kinnan, for appellant. H. L. & H. E. Jewett, for appellee.
The appellee's complaint alleges that “the defendant is indebted to the plaintiff in the sum of $118 as wages from the 1st day of March, 1889, to the 22d day of April, 1889, which the defendant promised and agreed to pay to the plaintiff, with interest thereon” from the date last named. No bill of particulars was filed with the complaint. The pleading does not disclose whether the contract sued on was executory or executed. It may be true that the appellant promised and agreed to pay the appellee $118 for wages during the period named, but that no services have ever been actually rendered by the appellee, and, if so, there could be no recovery, and the averment that the appellant was indebted for the sum would be but a legal conclusion. Webster defines “wages” as “compensation given to a hired person for services.” The averment might, therefore, without a change of meaning, be made to read that “the defendant is indebted to the plaintiff in the sum of $118 as compensation for services which the plaintiff had been hired by the defendant to perform.” But this would not make the averment any stronger, for it would still fail to show that the services had been performed. If they had not been performed, there would be no consideration for the promise to pay. Every contract, in order to be valid, must stand upon a sufficient or valid consideration, and, as a general rule, the complaint declaring upon such contract must aver, and the evidence must show, such consideration. Of course, where a written contract is relied upon which discloses the consideration, or an oral one which imports it, it will not be necessary to aver the consideration more specifically in order to render the complaint sufficient. But, if this is not the case, the consideration must be pleaded, or the complaint will not be sufficient. Leach v. Rhodes, 49 Ind. 291;Nichols v. Nowling, 82 Ind. 488;Higham v. Harris, 108 Ind. 246, 8 N. E. 255;Plunkett v. Black, 117 Ind. 14, 19 N. E. 537.
Assuming, however, that the complaint discloses a valid cause of action, we pass to the consideration of the alleged error of the overruling of the appellant's motion for a new trial. One of the grounds assigned for a new trial is the insufficiency of the evidence to sustain the verdict. The verdict is a special verdict, and follows the theory of the complaint that the appellant is indebted to the appellee for wages as a blacksmith. The evidence shows without contradiction that the appellee, prior to the time covered by the complaint and subsequent thereto, was employed by the appellant as a blacksmith in its shops, and that his wages was 26 cents per hour; 10 hours being considered a day's work. About the 1st day of March, 1889, the appellee received a personal injury while in appellant's service, which disabled him for work during the period covered by the complaint, except that he worked one day during that period. The appellee testified that when he was injured he made an agreement with Mr. Watkeys, the superintendent of the work in which the appellee had been engaged, that if he would not sue the company, and would sign a release for any claim he might have against it for damages on account of said injury, the company would pay him his regular wages. He testified in part as follows: ...
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