Barkalow Bros. Co. v. English

• Decision Date: 10 December 1954
• Docket Number: 33538,Nos. 33537,s. 33537
• Citation: 159 Neb. 407,67 N.W.2d 336
• Parties: BARKALOW BROS. COMPANY, a Corporation, Appellee, v. Jack J. ENGLISH, Appellant, Impleaded with Michael A. English, Appellee. BARKALOW BROS. COMPANY, a Corporation, Appellant, v. Jack J. ENGLISH and Michael A. English, Appellees.
• Court: Nebraska Supreme Court

Page 336

67 N.W.2d 336

159 Neb. 407

BARKALOW BROS. COMPANY, a Corporation, Appellee, v. Jack J. ENGLISH, Appellant, Impleaded with Michael A. English, Appellee.

BARKALOW BROS. COMPANY, a Corporation, Appellant, v. Jack J. ENGLISH and Michael A. English, Appellees.

Nos. 33537, 33538.

Supreme Court of Nebraska.

Dec. 10, 1954.

Syllabus by the Court.

1. In the absence of fraud, mistake, or ambiguity a written agreement is not only the best evidence but the only competent evidence as to what is the contract of the parties.

2. The allegations of a pleading are always in evidence for all purposes of the trial. They are before the court and jury and may be used for any legitimate purpose.

3. A party may at any and all times invoke the language of the pleading of his adversary on which the case is tried, on a particular issue, as rendering certain facts indisputable; and in doing this he is neither required nor permitted to offer the pleading in evidence.

4. Admission made in a pleading on which the trial is had is more than on ordinary admission. It is a judicial admission. It is not a means of evidence, but a waiver of all controversy, so far as the adverse party desires to take advantage of it, and is therefore a limitation of the issues.

5. The power of this court to permit a pleading to be amended is ordinarily exercised to sustain a judgment and not to reverse it, unless the refusal to allow the amendment would permit a miscarriage of justice.

Joseph J. Cariotto, Lincoln, for Jack and Michael English.

Van Pelt, Marti & O'Gara, Warren K. Dalton, Lincoln, for Barkalow bros. co.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This litigation concerns a claim of Barkalow Bros. Company against Jack J. English for the purchase price of merchandise allegedly sold and delivered by the former to the latter by virtue of a written contract of the parties, and a claim of Jack J. English that he was not indebted to Barkalow Bros. Company for any amount on any account but that it was indebted to him for wages earned while he was employed by it as a salesman. The trial of the dispute resulted in a verdict and judgment for Jack J. English against Barkalow Bros. Company. Its motion for new trial was denied as to its claim as pleaded in its petition and it was sustained as to the matters presented by the counterclaim of Jack J. English. His appeal from the part of the ruling on the motion for new trial adverse to him is case No. 33537. The appeal of Barkalow Bros. Company from the part of the ruling on the motion adverse to it is case No. 33538. The cases were consolidated for hearing and determination in this court. The contesting parties are Barkalow Bros. Co., hereinafter called appellant, and Jack J. English, designated as appellee. Michael A. English, the surety on a bond given to appellant to guarantee the performance by appellee of his obligations because of the contract between him and appellant, was a defendant in the district court, but he did not appeal and has not appeared in either case in this court.

The cause of action alleged by appellant is: That it is a domestic corporation; that on or about July 17, 1950, it and appellee made a written contract, a copy of which was made a part of the petition; that on or about that date appellee and Michael A. English executed a bond for the benefit of appellant, named therein as obligee, to protect and save it harmless from any loss occasioned by or resulting from the contract, and a copy of the bond was made a part of the petition; that appellee became and was indebted to appellant for an amount stated; and that demand of payment had been made of appellee and Michael A. English but no part thereof had been paid to appellant.

An answer was filed by appellee 1 year and 7 days after appellant filed its petition in which appellee admitted the execution of the contract made a part of the petition, and he alleged that he obtained goods from appellant, sold large quantities of said goods, returned all unsold goods to appellant, and turned over to it all cash and checks received from customers; that appellant made calculation of the accounts and from time to time paid to appellee what it represented was due him as his share of the transactions; that the payments received by appellee from appellant were an average of about $50 a week; and that the payments so made and received were an agreed settlement of all sums owing to and receivable 'by both parties in full of account.' Appellee denied other matters alleged in the petition.

The contents of the pleading of appellee, except the admission of the execution of the contract, were denied by appellant.

Appellee more than 7 months after he made answer to the petition filed a pleading designated cross-petition in which it is asserted: He 'incorporates herein by reference the allegations of his answer.' When he was employed by appellant he was told he would receive in excess of $100 a week as his pay. He relied upon this representation and 'went to work for said plaintiff.' Shortly thereafter appellee 'asked for his said earnings' but appellant refused to honor his demand. Before January 11 appellee offered to quit if he could not collect his wages and appellant told him to stay on the job 'because he would get his said wages paid to him' and appellee continued to work for appellant until about January 11, 1951. Appellee used his automobile at the request of appellant in its business for 60 days, traveled an average of 150 miles each day, and that a fair and reasonable charge therefor was 6 cents a mile. Appellee prayed for the amount he claimed was due him from appellant.

It was stipulated at the trial that it should be considered that appellant had denied the statements of the last pleading of appellee.

The contract between appellant and appellee is dated July 17, 1950. It provides that appellee in his relations with appellant should be an independent contractor; that appellant would sell and deliver to appellee merchandise of the character described for prices determined as mentioned in the agreement to be paid by appellee as specifically set forth in the writing; that appellee knew the territorial limits of the franchise lines of appellant, would respect them, and take no action or make any sale that would infringe upon any territory not franchised to appellant by the manufacturer; that appellee would offer for sale the merchandise sold him by appellant to customers at the places specifically named in the contract; that appellee would devote his entire time to punctual and regular calls on the customers in that territory; and that the contract could be terminated by either party by giving to the other 30 days' notice in writing of the election to end it. The bond has the same date as the contract. It describes appellee as an independent route salesman and it guarantees the payment of all money due appellant, the obligee named therein, from appellee, to make good any losses sustained by appellant on account of the operations of appellee as such independent route salesman, and to save and keep harmless and indemnify appellant from any loss, costs, or expenses arising therefrom. The contract and bond were each executed, delivered, and made fully effective on or about the date exhibited by them.

Appellee talked with the Lincoln manager of appellant before he entered into any arrangement with it. He had not had experience in this kind of engagement. The manager described the territory that was open, the number of trips required to make the territory, and the facts generally important to such an undertaking. He explained something of the volume of sales made by and profit of the last route salesman in the territory. Appellee claimed the manager said that appellee '* * * should earn at least $100.00 a week. That's what the man previously had been earning on that territory.' Appellee was told in that conversation he would have to sign a contract and furnish a bond 'for the merchandise and money I was to turn in.' A copy of the form of contract and of the bond required were given to appellee. He took them with him, and read them fully and carefully. He said he became fully conversant with the contract. He took the contract and bond to his lawyer to be examined. His counsel suggested some changes in the contract. These were indicated on the form by the lawyer. The lawyer talked on the telephone concerning these with the Lincoln manager of appellant. Appellee took the form of contract back and gave it to the manager. The contract was completed, the changes offered by counsel for appellee were made, and the contract and bond were each executed, unconditionally delivered, and made fully effective. The parties thereto operated under the contract from July 17 to December 23, 1950.

Appellee seeks to avoid the clear terms and obvious effect of his written contract by pleading and attempting to establish that in his first negotiations with appellant he was told that he would receive 'in excess to $100.00 per week as his pay'; that he relied upon 'said representations'; and that thereafter he sometimes inquired when he was to be paid. Appellee offered his version of conversations. The first was during the initial negotiations. He testified the Lincoln manager during their talk said that '* * * I should earn at least $100.00 a week. That's what the man previously had been earning on that territory.' That was before the written contract was made. Later at a time not made definite or approximate appellee said he asked when he would start receiving 'this $100.00 a week' and the answer of the manager was for appellee 'to continue on, and it will work out and level itself off after a period of time.' During another conversation appellee claims he complained he was not making enough money and he said the manager told him '* * * 'Well, you just hang on. We'll get...