Everitt v. Bassler

• Decision Date: 29 May 1900
• Parties: J. A. EVERITT, SEEDSMAN, v. BASSLER.
• Court: Indiana Appellate Court

25 Ind.App. 303

57 N.E. 560

J. A. EVERITT, SEEDSMAN,

v.BASSLER.¹

Appellate Court of Indiana.

May 29, 1900.

Appeal from superior court, Marion county; James M. Leathers, Judge.

Action by Harry R. Bassler against J. A. Everitt, Seedsman. Judgment for plaintiff, and defendant appeals. Affirmed.

Florea & Seidensticker and Chas. A. Dryer, for appellant. McBride & Denny, for appellee.

HENLEY, J.

This was an action for damages growing out of the breach of contract. The first paragraph of complaint declares upon a verbal contract; the second, upon a written contract. Appellant, a corporation, filed a written motion, directed to each paragraph of complaint, asking that appellee be required to separate the causes of action improperly joined therein into paragraphs, and number them, which motion the court overruled. Appellant's demurrer was also overruled to each paragraph of complaint. Thereupon appellant filed four paragraphs of answer, addressed to each paragraph of complaint, and a counterclaim in one paragraph. Appellee replied in general denial. The cause was submitted to the court for trial, which resulted in a judgment for appellee. Appellant's motion for a new trial was overruled.

The first question presented to this court arises out of the ruling of the lower court in overruling appellant's motion to require appellee to separate the causes of action improperly joined in each paragraph of complaint into paragraphs, and to number them. It is not necessary that we examine into the merits of this motion, as the ruling of the court, in any event, was not available error, and could not result in a reversal of the judgment. It would seem that the cases cited by appellant's counsel were directly in point, but the later decisions of the supreme court are squarely in conflict with the rule contended for by counsel. See Railway Co. v. Rooker, 90 Ind. 581;Mansfield v. Shipp, 128 Ind. 55, 27 N. E. 427;Richwine v. Presbyterian Church, 135 Ind. 80, 34 N. E. 737;Shaw v. Ayres, 17 Ind. App. 614, 47 N. E. 235.

The next question arises upon the ruling of the lower court in overruling the demurrer to each paragraph of complaint. It is averred in the first paragraph of complaint that on the 15th day of January, 1897, appellee was employed by appellant to work for appellant as salesman and manager in appellant's seed store in Indianapolis,-said employment being for the term of one year,-for which service appellee was to receive the sum of $15 per week, payable at the end of each week; that on said day appellee entered upon said work, and continued at said work until the 24th day of September, 1897, when appellant discharged him without cause, and refused to allow him to continue in said employment; that appellee has performed all of the conditions of said contract and agreement upon his part to be performed, and was ever ready, able, and willing to comply with the same; that he has been unable to obtain other employment elsewhere, and has lost his wages, profits, and advantages which he could have derived from said employment, to his damage in the sum of $285. This paragraph of complaint was sufficient to withstand a demurrer for want of facts. The statement in the complaint that a certain amount was due and unpaid for services rendered under the contract of employment before appellee was discharged does not lessen the force of the material averments charging a breach of the contract and resulting damages.

The second paragraph of complaint declares upon a written contract of employment. The contract was made by correspondence which passed between the parties prior to the time appellee began work. The complaint being upon a written contract, it was necessary to the sufficiency of the complaint that the contract should be made a part of the complaint. It is argued by counsel for appellant that all the correspondence which went to make up the contract is not made a part of the complaint. Without stating in this opinion a great many of the allegations of the second paragraph of complaint leading up to the correspondence which appellee contends was the contract of employment, and which is made a part of his complaint, we set out only that part material to the discussion. On the 4th day of January, 1897, appellee addressed a letter to appellant, which in the due course of mail was received by appellant. This letter was as follows: “Philadelphia, Pa., Jan. 4th, 1897. J. A. Everitt, Indianapolis, Ind.-Dear Sir: Yours of Jan. 1st to hand. From it I infer that you offer me a position at $15.00 per week for the year 1897, in addition to the money advanced for transportation, providing I do not leave you during the year. This makes a total of 52x15=780, plus $75=$855; that is, $855 to be paid during the year. If I am correct, please advise me. I will accept it, and have sent in my resignation, which, I hope, lets me off on Saturday eve, so that I can get off by the middle of next week, and report to you by Jan. 14th. At any rate, I will lose no time in coming. Your letter will reach me on Thursday, which will confirm my impression. As to leaving you, I would not come if I thought there was the slightest danger,...