Anderson Glass Co. v. Brakeman

• Decision Date: 15 October 1897
• Citation: 47 N.E. 937,20 Ind.App. 226
• Parties: ANDERSON GLASS CO. v. BRAKEMAN.
• Court: Indiana Appellate Court

20 Ind.App. 226

47 N.E. 937

ANDERSON GLASS CO.

v.BRAKEMAN.

Appellate Court of Indiana.

Oct. 15, 1897.

Appeal from circuit court, Madison county; A. Ellison, Judge.

Action by George A. Brakeman against the Anderson Glass Company and Philip Matter. From a judgment against the company, it appeals. Reversed.

Chipman, Keltner & Hendee, for appellant. Geo. M. Ballard and Wm. A. Kittinger, for appellee.

WILEY, C. J.

Appellee sued appellant and one Philip Matter, and recovered a judgment against the appellant, from which this appeal is prosecuted. The complaint is in one paragraph, and avers that on and prior to December 9, 1892, appellant and one Philip Matter were indebted to appellee for work and labor and materials furnished to them, etc., and that appellee owned $10,000 of stock in the appellant corporation; that appellee was indebted to appellant and Philip Matter for labor, materials, etc., and that on December 9, 1892, said Matter was the president of said glass company, and on said day appellee and appellant and said Matter, acting for himself and said glass company, had a full and complete accounting between them, and made a full and final settlement of all their accounts; that it was then and there agreed and determined between appellee, appellant, and said Matter that appellant and Matter were indebted on account in the sum of $1,680.74, and the further sum of $416.67, as the amount due him for the unexpired term of his service, as salary as superintendent of appellant corporation; that appellant and Matter were to take appellee's stock in appellant corporation, and pay him $5,000 therefor, making a total indebtedness due appellee of $7,097.41; that it was agreed and settled at that time that appellee was indebted to appellant and Matter, for lumber, building materials, etc., in the sum of $1,922, which should be and was deducted from the amount of indebtedness due appellee as above, and which left a balance of $5,175.41 due appellee; that of said amount the sum of $3,523.32 had been paid at the time the action was commenced, leaving a balance due appellee of $1,652.09. The complaint further avers that the appellee overpaid one Burke $214.39, which appellant and Matter owed him, and for these two amounts he demanded judgment. A joint answer was filed, in four paragraphs: First. General denial. Second. A plea of payment. Third. It was admitted that the appellee was the owner of $10,000 of stock in the appellant corporation; that the appellee sold and transferred the stock to said Philip Matter for the sum of $5,000, and that it was agreed that the $5,000 should be paid to the appellant, the Anderson Glass Company, and that it should pay of that amount what might be due to the appellee after deducting and taking therefrom any and all amounts that were then and might thereafter become due from the appellee to the appellant; that the sale of stock was on the 9th of December, 1892, and that at that time and prior thereto the appellee was in the employ of the appellant as superintendent, at a salary of $5,000 a year; that on said day appellee tendered his resignation as such superintendent, and that on said day, and for a long time prior thereto, the appellee had been purchasing material, lumber, stone, gas fittings, etc., and using them in the erection and construction of dwelling houses; that the appellee purchased the same upon the credit of the appellant, and that this fact was unknown to the appellant at the time of the purchases, and at the time of the alleged settlement it was not known by the appellant how much the appellee was indebted to the glass company on account of such purchases; that it was further agreed between the appellee and appellant that of any amount that might then be due or owing to the appellee on account of salary or otherwise, and the amount of $5,000 to be paid by said Matter to the glass company, there should be deducted any amount of indebtedness incurred by appellee in the name and upon the credit of the appellant, and that the sum so paid by Matter to the glass company should be held by it until all bills incurred by appellee on the credit of said glass company should be fully paid and satisfied, and that, if there should anything remain due after such payment, it should be paid to the appellee. This paragraph of answer sets out an itemized statement of the several amounts which it claimed had been paid on account of the facts hereinbefore stated, including cash paid directly to the appellee, and concludes by averring that, on account of such payments being equal to the amount due from appellant to appellee, there was nothing remaining due to the appellee. The fourth paragraph is in the nature of a set-off, in which it is stated, in brief, that the appellee was indebted to the appellant in the sum of $7,034.67 for money paid to the appellee and paid for the appellee, for his use and benefit, and for labor and material furnished to the appellee by the appellant, and asks that said sum be set off against any amount that might be found due the appellee. Both the complaint and the fourth paragraph of answer are accompanied by bills of particulars. At the proper time in the proceedings below the appellant, the Anderson Glass Company, filed its motion for a new trial, which motion was overruled, and to which ruling the appellant excepted. One ground in the motion for a new trial was based upon newly-discovered evidence, and this was supported by several affidavits. The trial court permitted the appellee to file counter affidavits, over the objection and exception of the appellant. In this court, appellant has assigned error as follows: First, overruling its motion for a new trial; second, that the complaint does not state facts sufficient to constitute a cause of action; third, in permitting the appellee to file counter affidavits in answer to affidavits of appellant in support of its motion for a new trial.

The important and pivotal facts upon which the decision must rest, and as disclosed by the record, are as follows: Appellant was a corporation organized and existing under the laws of the state of Indiana, and established and built a plant at Anderson, Ind., for carrying on its business. Appellee was employed as superintendent, and was put in charge of the construction of the buildings, machinery, etc., in which and by which appellant was to carry on its business. He was also put in charge of superintending the erection of 20 tenement houses for appellant, which were to be occupied and used as dwellings by its employés. During the time of the construction of these buildings appellee was engaged in the erection on his own account of 7 houses, one of which was to be used by himself, and the others were to be used as tenement houses. Appellant was paying appellee a salary of $5,000 a year, and in December, 1892, it coming to the knowledge of appellant's officers that appellee was building several buildings on his own account, and superintending their construction, the president of appellant, Philip Matter, demanded of appellee that for the time he had consumed in the erection of his own buildings he should allow a deduction from his salary, or, in other words, he should allow a credit on his salary for the time occupied in superintending the erection of his own buildings, in the sum of $100 each for the houses he was erecting. This proposition he declined to accede to, and after some further controversy about it he tendered his resignation as appellant's superintendent, which was accepted on the 9th day of December, 1892. At the time of his resignation, and prior thereto, he owned stock in the appellant corporation to the amount of $10,000, and on December 9, 1892, appellant's officers and the appellee met together for the purpose of effecting a settlement. At that meeting an agreement was made by which appellee sold his stock to Philip Matter for $5,000. It was also then agreed that appellant was indebted to appellee for salary, etc., in a fixed amount. It was then and there contended by appellant and admitted by the appellee that he was indebted to appellant in an unknown sum for materials, money, etc., which appellee had used in the erection of his private houses. Up to this point, on the material facts in the case, there is no controversy. As to the indebtedness from appellee to appellant, appellant contends that it was then and there agreed between them that the amount of such indebtedness should be ascertained as soon as possible, and whatever that amount should be should operate as a payment upon the amount due appellee from appellant. On the other hand, appellee contends that at the same time, to wit, December 9, 1892, it was agreed by and between him and the appellant that his indebtedness to the appellant was $1,922, and that the settlement then and there made was full and complete, and embraced all the differences between them. This is one of the disputed questions in this appeal, and we must look to the evidence for its determination. It is averred in the complaint that there was a full, complete, and final settlement between appellant and appellee, embracing all matters of difference between them, and it is contended by appellee's counsel that the evidence supports this...