Model Clothing House v. Hirsch

• Decision Date: 06 October 1908
• Docket Number: 6,216
• Citation: 85 N.E. 719,42 Ind.App. 270
• Parties: MODEL CLOTHING HOUSE v. HIRSCH
• Court: Indiana Appellate Court

85 N.E. 719

42 Ind.App. 270

MODEL CLOTHING HOUSE v. HIRSCH

No. 6,216

Court of Appeals of Indiana

October 6, 1908

From Lake Circuit Court; Willis C. McMahan, Judge.

Action by David Hirsch against the Model Clothing House and others. From a judgment against the Model Clothing House, it appeals.

Affirmed.

Stinson Brothers and A. F. Knotts, for appellant.

John A Gavit, V. S. Reiter and L. L. Bomberger, for appellee.

OPINION

WATSON, J.

Appellee brought this suit against the Model Clothing House, a corporation, Moses Rothschild and Adolph Hirsch for wages due and unpaid. The complaint was in two paragraphs. The first alleged an oral contract between plaintiff and defendants below, by which plaintiff was to receive $ 35 per week for his services from October 1, 1902, to October 10, 1905; that $ 2,365 was due him on said contract, but that said defendants refused and failed to pay said amount. The second paragraph alleged that $ 2,365 was due to plaintiff for services rendered during the period mentioned, being 157 weeks and 2 days, and that said services were reasonably worth $ 35 per week. The defendants separately demurred to the complaint for want of facts, but such demurrers were overruled. Defendants then filed an answer of general denial and of payment. A demurrer to the answer of payment was overruled.

The cause was tried before a jury which returned a verdict for plaintiff, and assessed damages in the sum of $ 1,609.45, and judgment was rendered thereon for said sum. A motion for a new trial was sustained as to Moses Rothschild and Adolph Hirsch, but denied as to the Model Clothing House, whereupon an appeal was taken to this court by the last-named defendant.

The errors assigned and discussed are: (1) overruling a motion to compel appellee to elect upon which paragraph of the complaint he would depend for recovery; (2) giving upon the court's motion certain instructions; (3) overruling the motion for a new trial; (4) failure of the evidence fairly to support the verdict and, (5) the weight of evidence was against the verdict.

Appellant insists that since appellee testified that there was a definite contract, and appellee's attorney made the remark: "Yes, sir; we say there was"--meaning a definite contract--the trial court erred in not requiring appellee to elect, after the evidence was in, upon which paragraph of the complaint he would depend for recovery. Whether there was a definite contract was purely a question of fact for the jury. It was entirely within the province of the jury to determine from all the evidence whether a right to recover had been established upon either paragraph. If there was no evidence to warrant a recovery upon the second paragraph the jury could so find, but appellee was entitled to have the evidence submitted for consideration. There was no error in submitting the evidence, with proper instructions, to the jury.

The objections to the instructions, except the fourth, given by the court of its own motion, were based upon the theory that there was no evidence upon which a verdict on the quantum meruit could be reached. There was testimony to show that appellee was in the employ of appellant during the time for which the arrears in salary were claimed, and had performed the services alleged; that such services were reasonably worth $ 30 per week; that he had been paid only $ 20 per week during such period; that the balance was due and remained unpaid; that said services had been performed at the request of appellant's agent for and in behalf of appellant company.

It is true that evidence was introduced to contradict that in favor of appellee; but, under the well-known rule that this court will not weigh conflicting oral evidence (Schmoll v. Schenck [1907], 40 Ind.App. 581, 82 N.E. 805, and cases cited), we cannot say that there was no evidence to support the averments of the second paragraph of the complaint. Consequently there was no error in instructing the jury in the law pertaining to the second paragraph.

The objection to the fourth instruction is not tenable, for the reason that it is not improper to instruct the jury that preponderance of evidence does not depend upon the number of witnesses. Howlett v. Dilts (1892), 4 Ind.App. 23, 30 N.E. 313; Fritzinger v State, ex rel. (1903), 31 Ind.App. 350, 67 N.E. 1006.

Objection is also made to the testimony of John A. Gavit, one of appellee's attorneys. It is contended that his testimony consisted of a confidential conversation between himself, as attorney, and Rothschild, one of the defendants. Gavit's testimony was as to statements made to him by Rothschild which he (Gavit) was requested to communicate to appellee. Statements made even by a client to his attorney to be...