American Food Company v. Halstead
| Decision Date | 13 December 1905 |
| Docket Number | 20,554 |
| Citation | 76 N.E. 251,165 Ind. 633 |
| Parties | American Food Company v. Halstead |
| Court | Indiana Supreme Court |
From Newton Circuit Court; Charles W. Hanley, Judge.
Action by American Food Company against Everett Halstead. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Affirmed.
Candlish Fletcher & Hamblen, George K. Hollingsworth and J. E Wilson, for appellant.
Foltz & Spitler, for appellee.
Appellant instituted this action against appellee. The complaint was in two paragraphs. The first was on a note, the second was on an account. There were seven paragraphs of answer: a general denial, a plea of payment, three pleas of set-off and a plea of accord and satisfaction. Appellant unsuccessfully demurred to the special pleas, other than that of payment. Issues of fact were thereupon joined on said special paragraphs. A trial by jury resulted in a verdict which consisted merely of a general finding in favor of appellee, and on this verdict judgment was rendered.
Appellant has assigned the rulings on demurrer as error. Its brief, however, contains no statement of the substance of the answers demurred to, further than this: That the fourth and sixth paragraphs are respectively based on claims of set-off for commissions on goods sold, that the fifth paragraph is a set-off for work and labor performed, and that the seventh paragraph is in the nature of an accord and satisfaction. Appellant's points in his brief contain no specific objection to any of said answers. It is merely stated therein that said paragraphs are insufficient. In the particulars mentioned said brief in nowise complies with rule twenty-two of this court. The brief is defective both in the omission to make a statement of the record sufficient to present the exceptions relied on, and also in the failure to point out any definitive objection to said answers. M. S. Huey Co. v. Johnston (1905), 164 Ind. 489, 73 N.E. 996; Buehner Chair Co. v. Feulner (1905), 164 Ind. 368, 73 N.E. 816; Penn Mut. Life Ins. Co. v. Norcross (1904), 163 Ind. 379, 72 N.E. 132; Perry, etc., Stone Co. v. Wilson (1903), 160 Ind. 435, 67 N.E. 183; Chicago, etc., R. Co. v. Wysor Land Co. (1904), 163 Ind. 288, 69 N.E. 546; Chicago, etc., R. Co. v. Walton (1905), ante, 253. However, there does not seem to have been any evidence introduced in support of the plea of accord and satisfaction, and as to the pleas of set-off, which are part and parcel of the defense as asserted upon the trial, they appear clearly sufficient to us. We may therefore observe that no error which goes to the merits of the case seems to be involved in said rulings.
The questions which demand consideration at our hands arise on an assignment of error based on the overruling of appellant's motion for a new trial. Before taking up the specific questions arising thereunder it will be well to state in outline the nature of the evidence and the contentions of the parties. It appears from the evidence that in the years 1901 and 1902 appellant, a corporation, was engaged in manufacturing and putting upon the market a stock food. In November, 1901, appellee, by an accepted proposition in writing, was given the exclusive right to sell said food in Indiana, he to make payment, either in cash or approved notes, at certain specified rates, for food sold. February 17, 1902, the parties entered into a contract under seal, in the state of Illinois. The latter contract recited that appellee was in the employ of appellant in the sale of said food, and that he had an opportunity of obtaining some large orders therefor. It was thereupon stated in said writing that it was agreed that when appellee's sales aggregated 125,000 pounds of said food, he should receive eleven shares of the capital stock of appellant, and be entitled to an option to purchase certain other of said shares at par. It was also provided in said contract that appellee should pay appellant for food sold by him at the rate of four cents per pound, and the latter agreed that on accepted orders, or on notes approved by it, it would advance to appellee the excess over their said contract price, less bank discounts. Appellant claims to have acted on this agreement, and that there accrued to it thereunder, between February 22, 1902, and May 31, 1902, a demand against appellee of $ 1,849.29, $ 1,485.69 of which was in an open account. The balance was represented by a ninety-day note. Appellee claimed upon the trial that subsequently to the execution of the contract under seal, in February or March of said year, an oral agreement was made between appellant and himself to the effect that upon the acceptance of each order sent in by him he was to be entitled to a commission equal to the difference between four cents per pound and the selling price, or, in other words, that appellant was to be responsible for any losses which might result in the collection of such orders. Appellee admitted that he had given some orders on his own account for which he was indebted, but he claimed that under said oral arrangement commissions had accrued to him in a sum largely in excess of the amount that he was owing appellant. The difference between the parties appears largely to lie in the fact that, whereas, appellant has charged appellee with the amount of all orders sent in by him, the latter, on the contrary, is claiming that the greater part of said orders should not be charged to him, but, instead, that he should be allowed a commission on sales in accordance with the oral agreement asserted by him.
The first contention of appellant under its motion for a new trial is that the court erred in admitting evidence of a subsequent oral...
To continue reading
Request your trial