Albert Johann & Sons Co. v. Echols
Decision Date | 16 July 1968 |
Docket Number | No. 2,No. 20621,20621,2 |
Parties | ALBERT JOHANN & SONS COMPANY, Inc., Appellant, v. Guy G. ECHOLS, Appellee |
Court | Indiana Appellate Court |
This appeal involves the alleged breach of an employment contract and a set-off to the action thereon.
The appellee, Guy G. Echols, plaintiff below, was awarded damages in the sum of $23,300.45 by the verdict by the jury against the appellant-defendant, Albert Johann & Sons Company, Incorporated. The plaintiff had alleged in his complaint that the defendant funeral establishment had contracted to employ him in an advisory capacity for a period of 12 1/2 years at a rate of $50.00 per week, plus some insurance benefits. Subsequently, the contract was terminated. The defendants, in their affirmative denials, raised numerous issues but only these three propositions are to be considered on appeal:
(1). Did the trial court err in directing a verdict for the plaintiff in the issue of the defendant's set-off claim?
(2). Did the plaintiff have a duty to mitigate any damages incurred as a result of the defendant's breach of the employment contract; and, should any collateral income have been offset against such damages?
(3). Did the court err in refusing to give certain instructions requested by the defendant, which instructions pertain to propositions (1) and (2) above?
Both parties herein filed their initial briefs on appeal, however, the appellant chose not to file a reply brief as our rules permit. The briefs submitted consisted mainly of excerpts from the record and pleadings.
The appellant's first proposition of error submits that the trial court should have overruled plaintiff's motion for a directed verdict on the matter of the defendant's set-off claim. The evidence shows that the plaintiff executed a promissory note in May, 1952, by which the plaintiff promised to pay to the defendant upon demand the sum of $6,681.84 plus interest and attorney's fees. It was this note which the defendant sought to set-off against the plaintiff's breach of contract claim. The plaintiff raised an affirmative defense to the set-off arguing that the statute of limitations has run on any action on this note; and, in the alternative, that the employment contract upon which plaintiff's action was brought contained a general release of any prior claims the funeral home may have had against Mr. Echols. Much of the transcript and briefs consist of matter pertaining to this issue. The defendant sought to show that the statute of limitations had been tolled by the plaintiff's payment of interest on the note during the last ten years, citing Meehan, Adm'x v. Meehan's Estate (1933), 98 Ind.App. 9, 186 N.E. 908. This testimony was not allowed by the trial court for the reason that it had been affirmatively shown that the statute of limitations on the note had expired and that the general release also barred the claim.
The defendant then made an offer to prove as to what the testimony would have been, if allowed by the court:
'Q. Has the interest been paid on this note?
(Emphasis supplied)
'And the plaintiff objects.
'And the objection was by the Court sustained.
'DEFENDANT'S OFFER TO PROVE--EXHIBIT 'A'.
It must be noted that the question to which the defendant directed his offer of proof required only a 'yes' or 'no' answer. To be proper an offer of proof must state only the exact fact or facts about which the proponent of the testimony would have the witness testify. Papenbrook v. White (1923), 194 Ind. 17, 141 N.E. 804. If the offer of proof is unresponsive, exceeds the scope of the question asked, or is in the form of a general statement or conclusion, it is not sufficient and there is no error in sustaining the objection to the question. Anselm v. Anselm (1947), 118 Ind.App. 169, 75 N.E.2d 921; Smith v. Gorham (1889), 119 Ind. 436, 21 N.E. 1096; Indianapolis & M. Rapid Transit Co. v. Hall (1905) 165 Ind. 557, 76 N.E. 242.
In the matter before us the witness was asked the simple question: 'Has the interest been paid on this note?' This required only and affirmative or a negative answer by the witness. Defendant's offer far exceeded the scope of the question and contained conclusions of law and fact, it was therefore improper and there is no error in sustaining the plaintiff's objection.
The question of the applicability of the statute of limitations to the defendant's set-off claim on the note offers less difficulty. The parties have apparently overlooked the fact that it has been the law in this state for more than one hundred years that a claim, otherwise barred by the statute of limitations, may be pleaded as a set-off. Fox v. Barker (1860), 14 Ind. 309.
This rule is codified as Section 2--1036 of Burns' Ind.Stat.Ann., which reads as follows, to wit:
The set-off claim, therefore, is not barred by the statute of...
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