Macbeth-Evans Glass Co. v. Jones
| Decision Date | 27 June 1911 |
| Docket Number | No. 21,878.,21,878. |
| Citation | 95 N.E. 567,176 Ind. 221 |
| Parties | MACBETH-EVANS GLASS CO. v. JONES. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.
Action by Albert Jones against the Macbeth-Evans Glass Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Transferred from Appellate Court under Burns' Ann. St. 1908, § 1405; Acts 1901, p. 590.
B. H. Campbell, E. R. Call, Joseph F. Cowern, and Frederick E. Matson, for appellant. Grant A. Deuter, Harley F. Hardin, and Marshall Williams, for appellee.
This was an action by appellee against appellant. The complaint was in two paragraphs.
The first paragraph alleges that defendant is a corporation engaged in manufacturing glassware as an article of merchandise; that in 1906, at defendant's request, plaintiff beganworking for defendant as an iron mold blower in the manufacture of glass, and continued in such employment until June, 1907; that defendant agreed to pay plaintiff the reasonable value of his services, which are alleged to be $700; that there remains due and unpaid on the account, $100; that in June, 1907, plaintiff demanded payment of the account, which was refused. It is further alleged that in bringing the action plaintiff was compelled to employ an attorney and he demands judgment for the balance due him on account and the value of his attorney's services. The second paragraph alleges: That plaintiff entered into a written contract with defendant in October, 1906, whereby plaintiff promised to work for defendant as an iron mold blower at its factory at Marion, and defendant promised to keep him in its employ for five years. Pursuant to the terms of the written contract, plaintiff worked for defendant until June, 1907, when defendant, without any fault on the part of plaintiff, discharged him. That during the time of his employment he earned, under the terms of the contract, $700, of which sum $70 is due and unpaid. That demand therefor was made and refused in June, 1907. That plaintiff was compelled to employ an attorney to bring this action, and judgment is demanded for the balance of the account and the value of plaintiff's attorneys fees. The complaint was filed August 20, 1907. The written contract was not filed with the second paragraph of the complaint, because, as alleged, it was in defendant's possession, who refused to permit plaintiff to take, copy, or see it. The defendant filed an answer in three paragraphs, as follows: First, general denial; second, payment. The third alleges a written contract of employment for five years, a copy of which is filed with the answer, and by one of the terms of which 10 per cent. of the wages earned was to be retained by defendant as a guaranty for the faithful performance of the contract, and, for any breach of which the money so retained was to be paid to the company as liquidated damages for the breach. It is further alleged that plaintiff worked for a period under the terms of the contract, and afterwards voluntarily, without the consent of defendant, quit its service. That the money sued for in the complaint is the 10 per cent. retained, and by reason of plaintiff's breach of the contract in voluntarily quitting defendant's service he ought not to recover. There was a trial by the court, and finding and judgment for plaintiff for the amount of the account sued on and the further sum of $25 for attorney's fees.
Appellant filed a motion for a new trial, assigning four reasons therefor, viz.: The decision is contrary to law, not sustained by sufficient evidence. The assessment of the amount of recovery is erroneous being too large. The court erred in admitting in evidence testimony of the value of plaintiff's attorneys fees.
[1] Appellant in this court assigns two errors, viz., overruling its motion for a new trial, and that the complaint does not state facts sufficient to constitute a cause of action. The latter is waived by failure to discuss it in appellant's brief.
[2] The lower court made an allowance for plaintiff's attorneys fees under section 7996 and section 7999, Burns' Stat. 1908 (Acts 1887, p. 13). Appellant contends that in any view of this matter such action was unwarranted, because this statutory provision violates clause 23 of article 1 of our Constitution. The contrary was held by this court in the case of Macbeth-Evans Glass Company v. Amama, 95 N. E. 228, decided at this term. At the trial of this cause, it was admitted that appellee earned during his employment $714.35, and that the amount paid him was $643.45. The judgment of the lower court was for the difference between the above amounts and for attorney's fees. The appellant contends that the court erred in overruling the motion for a new trial because the evidence shows that plaintiff was working under the written contract, and that he voluntarily quit defendant's service, and thereby forfeited any right to the 10 per cent. retained wages. Appellee meets this contention with the proposition that the court is not bound to consider any point requiring an examination of the evidence, because appellant in its brief...
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