Louisville, New Albany And Chicago Railroad Co. v. Barnes

• Decision Date: 21 October 1896
• Docket Number: 1,852
• Citation: 44 N.E. 1113,16 Ind.App. 312
• Parties: LOUISVILLE, NEW ALBANY AND CHICAGO RAILROAD COMPANY v. BARNES
• Court: Indiana Appellate Court

44 N.E. 1113

16 Ind.App. 312

LOUISVILLE, NEW ALBANY AND CHICAGO RAILROAD COMPANY v. BARNES

No. 1,852

Court of Appeals of Indiana

October 21, 1896

From the Clark Circuit Court.

Reversed.

E. C Field, W. S. Kinnan and M. Z. Stannard, for appellants.

C. L Jewett and H. E. Jewett, for appellee.

OPINION

REINHARD, J.

The appellee's complaint alleges that "the defendant is indebted to the plaintiff in the sum of $ 118.00 as wages from the 1st day of March, 1889, to the 22d day of April 1889, which the defendant promised and agreed to pay to the plaintiff with interest thereon" from the date last named. No bill of particulars was filed with the complaint. The pleading does not disclose whether the contract sued on was executory or executed. It may be true that the appellant promised and agreed to pay the appellee $ 118.00 for wages during the period named, but that no services have ever been actually rendered by the appellee, and if so there could be no recovery, and the averment that the appellant was indebted for the sum would be but a legal conclusion. Webster defines "wages" as "compensation given to a hired person for services." The averment might, therefore, without a change of meaning be made to read that "the defendant is indebted to the plaintiff in the sum of $ 118.00 as compensation for services which the plaintiff had been hired by the defendant to perform." But this would not make the averment any stronger for it would still fail to show that the services had been performed. If they had not been performed there would be no consideration for the promise to pay. Every contract in order to be valid, must stand upon a sufficient or valid consideration, and, as a general rule, the complaint declaring upon such contract must aver, and the evidence must show such consideration. Of course where a written contract is relied upon which discloses the consideration, or an oral one which imports it, it will not be necessary to aver the consideration more specifically in order to render the complaint sufficient. But if this is not the case the consideration must be pleaded or the complaint will not be sufficient. Leach v. Rhodes, 49 Ind. 291; Nichols v. Nowling, 82 Ind. 488; Higham v. Harris, 108 Ind. 246, 8 N.E. 255; Plunkett v. Black, 117 Ind. 14, 19 N.E. 537.

Assuming, however, that the complaint discloses a valid cause of action, we pass to the consideration of the alleged error of the overruling of the appellant's motion for a new trial.

One of the grounds assigned for a new trial is the insufficiency of the evidence to sustain the verdict.

The verdict is a special verdict and follows the theory of the complaint that the appellant is indebted to the appellee for wages as a blacksmith.

The evidence shows without contradiction that the appellee prior to the time covered by the complaint and subsequent thereto was employed by the appellant as a blacksmith in its shops, and that his wages was twenty-six cents per hour, ten hours being considered a day's work.

About the 1st day of March, 1889, the appellee received a personal injury, while in appellant's service, which disabled him for work during the period covered by the complaint, except that he worked one day during that period. The appellee testified that when he was injured he made an agreement with Mr. Watkeys, the superintendent of the work in which the appellee had been engaged, that if he would not sue the company, and would sign a release for any claim he might have against it for damages on account of said injury, the company would pay him his regular wages. He testified in part as follows: "He told me the company would pay me the damages, or rather they would allow me my wages just the same as I was paid when at work, my regular wages, twenty-six cents an hour, during the period I was laid up, which was from the 1st day of March, until the 22d day of April, 1889. When I made this agreement with Mr. Watkeys he said I would be kept on the pay rolls of the company and be allowed my regular wages if I would not sue the company and sign the release. That is the reason I did not sue the company on account of my injuries. I made this agreement with Mr. Watkeys about a month before I went back to work."

Assuming without deciding, that Watkeys, by virtue of his position as superintendent in the appellant's service,...