Epps v. Epps

• Decision Date: 31 October 1885
• Citation: 17 Ill.App. 196,17 Bradw. 196
• Parties: CHARLES L. EPPS ET AL.v.FRANK P. EPPS.
• Court: United States Appellate Court of Illinois

17 Ill.App. 196

17 Bradw. 196

CHARLES L. EPPS ET AL.

v.FRANK P. EPPS.

Appellate Court of Illinois, First District.

October Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ROLLIN S. WILLIAMSON, Judge, presiding. Opinion filed November 25, 1885.

Mr. ROBERT H. MCMURDY, for appellants; that exemption laws are liberally construed, cited Good v. Fogg, 61 Ill. 449; Washburn v. Goodheart, 88 Ill. 229; Smyth on Homestead and Exemptions, § 519.

Mr. A. M. MCCONOUGHEY, for appellee; that the damages allowed appellee were due him for wages as laborer or servant, cited 1 Parsons on Contracts, 101; Coffin v. Reynolds, 37 N. Y. 641.BAILEY, P. J.

This was a suit in assumpsit, brought by Frank P. Epps against Charles L. Epps and Joseph F. Greer, to recover the value of certain services rendered by the plaintiff to the defendants. It appears that on or about October 17, 1881, the plaintiff was employed by the defendants, who were then engaged in certain mercantile business, in the capacity of traveling salesman and book-keeper, and that he served them in that capacity until some time in November, 1883, when the defendants failed in business. No rate of salary seems to have been expressly agreed upon, but the defendants credited the plaintiff from the time he entered their service up to the date of their failure, at the rate of $60 per month. After their failure the plaintiff was continued in their service without any further or different arrangement as to his salary or wages until June 1, 1884, when he was discharged.

The jury found the issues for the plaintiff and assessed his damages at $296.49, for which sum and costs the plaintiff had judgment. With the exception of two credits of $10 each claimed by the defendants, in respect to which the evidence was conflicting, the only controversy at the trial was as to the rate of salary or wages to which the plaintiff was entitled from the date of the defendants' failure up to June 1, 1884. The jury found against the defendants as to the two disputed credits, and computed the plaintiff's compensation at the rate of $60 per month.

We think the evidence warranted the verdict. The two disputed credits were sworn to by one of the defendants and disputed by the testimony of the plaintiff, and a conflict was thus raised which it was the peculiar province of the jury to settle, and with their finding we see no occasion to interfere. As to the rate of salary to which the plaintiff was entitled, the practice on the part of the defendant of crediting him each month for two years at the rate of $60 per month, was strong evidence of at least a tacit agreement that his compensation should continue at that rate until notified by the defendants to the contrary. After their failure, the defendants desired and requested him to continue in their service, probably expecting to be able before very long to resume business, but no new arrangement seems to have been made as to his compensation. Under these circumstances, the jury had a right to presume that they intended to retain his services under the original arrangement, and that his salary was to continue at the same rate as before.

It is true, after the failure the plaintiff's work was much lighter. He no longer performed the services of a traveling salesman, and little remained for him to do as book-keeper. Precisely what he did do, and what services he was called upon to perform, the evidence fails to disclose. In the absence of evidence on that subject, it may be presumed that they were of the same general nature as those in which he was engaged prior to the failure. His compensation during this period, however, depended not upon the amount of service he was actually called upon to perform, but upon the contract express or implied, under which he was acting. According to that, as we have seen, he was to receive $60 per month, and we think that, under the circumstances, the jury were justified in awarding him that sum.

The court, after overruling a motion by the defendants for a new trial, rendered judgment on the verdict, and expressed in the record of the judgment a finding that the damages awarded the plaintiff were due him for wages as laborer or servant. This finding is assigned for error.

It is claimed that, as the case was tried by a jury, the question whether the amount due the plaintiff was for wages as laborer or servant, should have been submitted to and found by them. The fourth section of the act in relation to the exemption of personal property approved May 24, 1877, is as follows:

“No personal property shall be exempted from levy of attachment or execution when the debt or judgment is for the wages of any laborer or servant; provided the court rendering judgment shall find that the demand so sued for is for wages due each person as laborer or servant; which finding shall be expressed in the record of said judgment and indorsed upon the execution when issued.”

This section has never before, so far as we know, received judicial construction, but the language employed seems to leave little doubt that the legislature intended to devolve upon the court, at the time of rendering judgment, the duty of determining whether the indebtedness for which judgment was being rendered, was for the wages of a laborer or servant. This finding would seem to be required, not at the trial or as a part of the trial, but at the time of the rendition of judgment, and the statute provides in express terms that it is to be made by the court. We think there was no error in not having submitted the question to the jury.

There is greater difficulty in holding that the finding is supported by the evidence. The determination of this question must depend upon the interpretation to be given the words “laborer or servant” as used in the statute. It is well settled that statutes creating exemptions from levy and forced sale under execution are beneficial in their operation, and founded in a wise policy, and should therefore receive a liberal construction. Good v. Fogg, 61 Ill. 449; Washburn v....