Holcomb & Hoke Mfg. Co. v. Younge
| Decision Date | 25 May 1937 |
| Docket Number | 15476. |
| Citation | 8 N.E.2d 426,103 Ind.App. 439 |
| Court | Indiana Appellate Court |
| Parties | HOLCOMB & HOKE MFG. CO. v. YOUNGE. |
Smith Remster, Hornbrook & Smith, of Indianapolis, for appellant.
Alvah J. Rucker and Rocap & Rocap, all of Indianapolis, for appellee.
This action was instituted by appellee against appellant to recover damages for breach of an oral contract for services alleged by appellee to have been entered into with appellant. The amended complaint was in one paragraph to which appellant addressed its answer in two paragraphs the first a general denial and the second a plea of payment. To the affirmative answer appellee replied in general denial. A trial by the court and jury resulted in a verdict and judgment in favor of appellee, awarding him damages. Interrogatories were submitted to the jury and the answers thereto returned with the general verdict. Appellant, within due time, filed its motion for a new trial, which was overruled. Appellant then filed a motion for judgment in its favor on the interrogatories submitted and the answers of the jury thereto. This motion was also overruled, and judgment was entered by the court on the verdict. From this judgment appellant appeals and assigns as error: (1) the ruling of the court on appellant's motion for judgment on the interrogatories and answers thereto; (2) the ruling of the court on appellant's motion for a new trial. The grounds in the motion for a new trial which are properly presented are that the court erred in giving and refusing to give certain instructions and that the verdict is not sustained by sufficient evidence and is contrary to law.
It appears from the evidence that appellant called appellee by telephone, informing him that a position of employment was open in its legal department and asking if he would accept this position. At the time appellee resided in Cleveland, Ohio, where he was practicing law and earning approximately $200 a month. In response to appellant's inquiry he replied that he would be interested but that he would like to confer with his wife, which was agreable with appellant, and appellee was then requested to report the following day. Appellant said: "This job pays a salary of $2,600 per annum, which figures out something like $50 per week." Appellee was told that he was wanted immediately and was asked if he could report the following Monday to which he replied that he could and that he would telegraph appellant the next day. The following day, November 4, 1930, appellee sent a telegram to appellant to expect him on Monday morning, November 10th. On the morning of November 10, 1930, appellee arrived in Indianapolis, went to the office of appellant, and immediately went to work. Appellee continued to work for appellant for some time and was later discharged on July 14, 1931. Shortly after appellee began his work he made application for an indemnity bond and secured the bond. At the suggestion of appellant appellee moved his family and furniture from Cleveland to Indianapolis and rented a house in the city of Indianapolis where he lived with his family until he was discharged. The position for which appellee was employed required considerable work extending over a long period of time. After his discharge appellee sought other employment, but he was unsuccessful. Several payments were received by appellee from appellant, the amount of which is immaterial, as no question is presented in this appeal as to payment.
The jury, by its answers to the interrogatories propounded, found specifically that on November 3, 1930, appellant, in a telephone conversation, agreed with appellee to employ him; that appellee, on November 4, 1930, agreed to work for appellant; that on said date it was agreed between appellant and appellee that appellee would commence work on November 4, 1930, the employment to last for one year and expire on November 4, 1931.
Appellant contends that a contract for a period of one year did not exist between it and appellee in the first instance, and further, if such contract did in fact exist, the evidence shows conclusively that it was not to be performed within a year from the making thereof and, not being in writing, was within the statute of frauds and unenforceable (section 33-101, Burns' 1933, section 8363, Baldwin's Ind.St.1934). These contentions are without merit. There was ample evidence to warrant the jury in finding that a contract for a period of one year existed between appellant and appellee. The mere fact that appellee did not actually commence work until November 10, 1930, would not of itself be determinative of the period within which such contract was to be performed. The term of appellee's employment was a question of fact for determination by the jury upon all of the evidence pertaining to the subject. In this instance it became a...
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