Featherstone Foundry & Machine Company v. Criswell

• Decision Date: 25 June 1905
• Docket Number: 5,401
• Citation: 75 N.E. 30,36 Ind.App. 681
• Court: Indiana Appellate Court
• Parties: FEATHERSTONE FOUNDRY & MACHINE COMPANY v. CRISWELL

75 N.E. 30

36 Ind.App. 681

FEATHERSTONE FOUNDRY & MACHINE COMPANY v. CRISWELL

No. 5,401

Court of Appeals of Indiana

June 25, 1905

Rehearing denied October 24, 1905. Transfer denied December 8, 1905.

From Superior Court of Marion County (63,475); Vinson Carter Judge.

Action by Alexander P. Criswell against the Featherstone Foundry & Machine Company. From a judgment for plaintiff defendant appeals.

Affirmed.

Addison C. Harris and Frank C. Cutter, for appellant.

Hawkins, Smith & Hawkins, for appellee.

OPINION

ROBY, J.

Appellee sued appellant for $ 2,500 alleged to be due under an oral contract for the payment of a commission upon sales made by appellant in its "refrigerating department" during the term of appellee's employment by it as a general agent, such commission being in addition to a salary of $ 175 per month and expenses paid to him by it. He recovered according to the theory of the complaint. The issue was made by general denial and an answer of payment which was also denied. Error is assigned upon overruling the motion for a new trial. The reasons given for a new trial will be considered in the order in which they are presented.

The controversy between the parties is over the terms of appellee's employment. His contention is that he was to receive $ 175 per month, expenses, and two and one-half per cent commission upon all sales made by the department. The appellant's contention is that it did not agree to pay any commission; that no commission was contemplated. The testimony was in direct conflict.

Appellee, after some preliminary negotiations in which "there was not much said about compensation," submitted to appellant's president a form of contract which was not assented to. He thereupon prepared a second form, and submitted it to the same person. The principal difference in the two drafts related to the fixed salary, which was reduced in the latter one from $ 200 to $ 175 per month, both containing a provision for the payment of two and one-half per cent commission on sales made by the department of appellant's business named. Appellee testified that appellant's president read the last draft; said it was all right; said he wanted to submit it to his lawyers; that he was going east; that appellee should go to work, and when he came back he would fix up the contract. Appellee further testified that he was not able after that time to get the attention of the president to the matter. He continued in the employment thirteen months.

It is insisted that, although the terms of the contract were assented to, it was not completed until it was signed, the intent being manifest that it should be reduced to writing. The law is that where the parties make the reduction of the agreement to writing and its signature by them a condition precedent to its completion, it will not be a contract until it is reduced to writing and signed. But where they assent to all of its terms, the mere reference to a future contract in writing will not negative the existence of a present and completed one. 7 Am. and Eng. Ency. Law (2d ed.), 140. Appellee entered upon the employment in pursuance to the arrangement made. The reduction to writing of the agreement was not made a condition precedent to its completion, and the point is not therefore well taken.

The contract sued upon is not alleged to have been in writing and the complaint is therefore regarded as founded upon an oral contract. Perkins, etc., Ax Co. v. Yeoman (1899), 23...