American Car And Foundry Company v. Smock

• Decision Date: 13 May 1910
• Docket Number: 6,864
• Citation: 91 N.E. 749,48 Ind.App. 359
• Parties: AMERICAN CAR AND FOUNDRY COMPANY v. SMOCK
• Court: Indiana Appellate Court

91 N.E. 749

48 Ind.App. 359

AMERICAN CAR AND FOUNDRY COMPANY v. SMOCK

No. 6,864

Court of Appeals of Indiana

May 13, 1910

Rehearing denied November 29, 1910, Reported at: 48 Ind.App 359 at 371. Transfer denied June 30, 1911.

From Hendricks Circuit Court; James L. Clark, Judge.

Action by W. Albert Smock against the American Car and Foundry Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

J. W Hutchinson, W. A. Ketcham, R. M. Ketcham and H. S. Landers, for appellant.

Salem D. Clark and Brill & Harvey, for appellee.

ROBY, J. Rabb, P. J., dissents.

OPINION

ROBY, J.

Appellant is a corporation owning and operating a manufacturing establishment at Indianapolis. Appellee was employed by it as a carpenter, his work being connected with the building of cars. His hand was injured on April 2, 1906, while in appellant's service. He subsequently made a claim against the company on account of such injury, and thereafter executed an instrument in terms as follows:

"Whereas, on or about April 2, 1906, an accident occurred resulting in bodily injury to W. Albert Smock, of Indianapolis, Indiana; whereas, said W. Albert Smock has made a claim on the American Car and Foundry Company for money compensation for such injury, asserting that said American Car and Foundry Company is legally liable for said accident and injury, which said legal liability said American Car and Foundry Company expressly denies: Now therefore, I, said W. Albert Smock, in full accord and satisfaction of such disputed claim, do hereby acknowledge the receipt of the sum of $ 350, to me in hand paid by said American Car and Foundry Company, and in consideration thereof, I, said W. Albert Smock, do hereby remise, release and forever discharge the said American Car and Foundry Company, its successors and assigns, from any and all actions, causes of action, claims and demands, for, upon, or by reason of any damage, loss, injury or suffering which heretofore has been, or which hereafter may be, sustained by me, said W. Albert Smock, in consequence of such accident and injury. In witness whereof I have hereunto set my hand and seal this 5th day of July, 1906.

W. A. Smock.

Signed, sealed and delivered in the presence of L. L. Asham, attorney for W. A. Smock.

Burr J. Scott."

It is averred in the complaint, with a wealth of detail, that, in addition to the payment of the sum specified therein, appellant agreed to take appellee into its employ at $ 15 a week as soon as he was able to work, and keep him in its employ during the remainder of his life. The action is to recover for the breach of this contract. The issue upon which the case was tried was formed by a general denial. There was a verdict for appellee for $ 5,000, and judgment accordingly.

Appellant's position is that the consideration stated in the instrument heretofore set out is in terms contractual, thereby precluding proof of any other or different consideration. The holding upon this proposition must be against appellant. The instrument contains no promise or engagement on its part making the consideration contractual. Indianapolis Union R. Co. v. Houlihan (1901), 157 Ind. 494, 54 L. R. A. 787, 60 N.E. 943.

The consideration stated is by way of recital, and parol evidence is therefore admissible to show the true consideration. Stewart v. Chicago, etc., R. Co. (1895), 141 Ind. 55, 59, 40 N.E. 67; Pickett v. Green (1889), 120 Ind. 584, 588, 22 N.E. 737; Kentucky, etc., Cement Co. v. Cleveland (1892), 4 Ind.App. 171, 30 N.E. 802.

The facts are similar to those involved in the case of Pennsylvania Co. v. Dolan (1893), 6 Ind.App. 109, 51 Am. St. 289, 32 N.E. 802, which case supports the conclusion here reached. The determination of this question is practically a determination of the appeal. The evidence supports the finding, which goes with the general verdict, in accordance with the averments of the complaint, that appellee released his claim against appellant, in consideration of the payment of $ 350 and employment during the remainder of his life; and however much controversy there may have been in the trial court as to such fact, it is, at this time, to be taken as an established fact in the case. Appellant has accepted and holds the release so procured. "A man who has his option whether he will affirm a particular act or contract, must elect either to affirm or disaffirm it altogether; he cannot adopt that part which is for his own benefit and reject the rest. One cannot blow hot and cold." Herman, Estoppel § 1039. If a party having the right to repudiate or affirm a transaction affirm it he cannot afterward resort to his right of repudiation. That appellant cannot adopt the contract as its own, to the extent that the terms thereof are beneficial, and repudiate the obligation to pay the stipulated consideration, is "entirely too inconsistent with reason to leave much room for dispute." The persons who acted for appellant in the transaction, were the general superintendent of its Indianapolis plant and the agent of a liability insurance company. It is, so far as the point under consideration is concerned, immaterial whether either had actual authority to do so.

A party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions; and where one has an election between several inconsistent courses of action, he will be confined to that which he first adopts. Strosser v. City of Fort Wayne (1885), 100 Ind. 443, 452; Ney v. Swinney (1871), 36 Ind. 454; Peters v. Bain (1890), 133 U.S. 670, 33 L.Ed. 696, 10 S.Ct. 354; Stuart v. Hayden (1898), 169 U.S. 1, 42 L.Ed. 639, 18 S.Ct. 274; Daniels v. Tearney (1880), 102 U.S. 415, 26 L.Ed. 187.

When appellee brought this action, appellant was called on to answer. If the contract by which the release had been secured was not its contract, that was the time to repudiate it. It was then put to an election. Robb v. Vos (1894), 155 U.S. 13, 42, 39 L.Ed. 52, 15 S.Ct. 4. It did not repudiate the contract, but, holding the release thereby secured, it entered into a litigation to determine what consideration appellee was by its terms to have. What that consideration was, became matter of proof. The trial court has settled the issue according to evidence, and appellant must conform to the terms of the contract as it was made, and pay to the appellee the consideration for which he released his claim. Bigelow, Estoppel (5th ed.) 717. The maxim, "He is not to be heard who alleges things contradictory to each other," applies, and lack of authority by appellant's general superintendent cannot be alleged against the fact that it holds the value thereby secured.

The question is not one of ratification by a principal, but of estoppel by election. Strosser v. City of Fort Wayne, supra.

In view of this conclusion, it is not necessary to discuss various questions that have been mooted. The amount of recovery is not challenged. The judgment is affirmed.

Rabb P. J., dissents.

DISSENT BY: RABB

RABB J.--I am unable entirely to concur in the views expressed in the foregoing opinion of the court. Appellee's case is predicated on a contract or promise, alleged to have been made by appellant to furnish appellee employment in its service. Appellant is a manufacturing corporation, with its principal offices in the city of St. Louis, and owning and operating two manufacturing plants in this State, one of them located in the city of Terre Haute and the other located in the city of Indianapolis, with a resident manager of its business in this State residing in Terre Haute. Appellee undertakes to sustain his complaint by proof of conversations had with appellant's general foreman, who had charge of its manufacturing plant in Indianapolis, where the injury occurred, out of which the contract is alleged to have grown. It is therefore essential to appellee's case that it appear that this person, with whom the alleged contract is said to have been made, was duly authorized by the company to transact said business. There is no conflict in the evidence in regard to the position in appellant's service of this general foreman, or to the nature of his duty, nor is there any evidence that he was especially authorized by appellant to settle appellee's claim for damages on account of his injury, or to settle any claims against the company for damages of any character; and the question presented is whether the power and authority to make this contract can be implied from the facts and circumstances shown to exist.

When an agency is created by a written instrument, or the facts out of which it is claimed an agency arises are undisputed, the existence of the agency and the scope of the agent's authority are questions of law for the court. Mechem, Agency § 105; 2 Page, Contracts § 963; 31 Cyc. 1672, and cases cited; 1 Am. and Eng. Ency. Law (2d ed.) 967.

Here the evidence shows that Baker, the man with whom appellee claims to have had dealings, had supervision of appellant's manufacturing plant at Indianapolis; that he had authority to employ and discharge servants; that the general direction of the work carried on in the plant was under his charge; that it was a part of his duty to superintend the making of improvements in the plant, the sale for cash of some of its products, and, to a limited extent, the purchase of material to be used in the factory. It does not appear that he had anything to do with administering the business affairs of the company, nor that he had any authority to pay its debts, even where they were liquidated and uncontroverted, nor to settle unliquidated but admitted liabilities, much less to settle and pay demands for which the company expressly denied liability. The authority of Baker was clearly not...