Old Reliable Paint Co. v. Storey
| Decision Date | 24 June 1924 |
| Docket Number | No. 11843.,11843. |
| Citation | 83 Ind.App. 203,144 N.E. 562 |
| Parties | OLD RELIABLE PAINT CO. v. STOREY. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Delaware County; Clarence W. Dearth, Judge.
Action by James A. Storey against the Old Reliable Paint Company. Judgment for plaintiff, and defendant appeals. Affirmed.
A. W. Fenstermacher, of Indianapolis, and J. E. Fouts, of Muncie, for appellant.
Arthur D. McKinley and Paul S. Brady, both of Muncie, for appellee.
This is an action by appellee against appellant to recover an alleged indebtedness for services performed. The complaint is in two paragraphs, each based on an express parol contract. The answer thereto consists of four paragraphs. The first relates to a letter made a part of the second paragraph, and is in the nature of a non est factum. The second is a general denial. The third alleges a compromise of the amount claimed by appellant to be due for the year 1917, and the conversion by appellee of property belonging to appellant of a value in excess of any amount due him for services subsequently rendered. The fourth is a plea of payment and satisfaction. Appellant also filed a fifth paragraph, which is in the nature of a counterclaim. A general denial was filed to all of said paragraphs except the second. The cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal.
Appellant, in support of its contention that the verdict is not sustained by sufficient evidence, asserts that the services for which appellee seeks to recover were rendered under three separate and distinct contracts, one being for each of the years 1917, 1918, and 1919, as disclosed by the evidence, and hence there can be no recovery, as the complaint is based on a single contract. We cannot concur in this contention. Each paragraph of the complaint is based on a single contract, as appellant claims, but covers services extending over a continuous period, beginning January 15, 1917, and ending September 15, 1919. The evidence is sufficient to sustain the facts alleged in that regard, as the settlement of disputes with reference to the terms of the contract, or any modification thereof, in minor particulars, not affecting the basis of appellee's compensation, would not break the continuity of appellee's service thereunder.
[1] It is also contended that appellee is not entitled to recover for his labor, as such, in making or attempting to make sales under his contract of employment, as his compensation was on a commission basis, and hence the risk of the time employed and labor expended was his; and further that there could be no recovery for services rendered in 1919, because appellee failed to remain in appellant's employment for that entire year. It suffices to say, in answer to the first contention stated, that appellee has not sought to recover for any labor performed or time expended, which entered into an attempt to perform the services required of him under his commission contract; and as to the latter contention it may be said that the contract, being indefinite as to the term of service,did not place an obligation on appellee to complete the full year stated, under the circumstances which the evidence tends to establish.
[2] Appellant contends that the amount of recovery assessed is too large. This cause for a new trial is only available when the amount of recovery assessed is greater than is warranted by any evidence introduced. Helms v. Appleton (1908) 43 Ind. App. 482, 85 N. E. 733, 86 N. E. 1023;Klitzke v. Smith, (1915) 59 Ind. App. 461, 109 N. E. 412. The record discloses some evidence to sustain the amount of recovery assessed, as well as every other element essential to appellee's cause of action, which is sufficient on appeal.
[3] Appellant has assigned, as one of its reasons for a new trial, that the jury erred in the assessment of the amount of recovery on its counterclaim, the amount assessed thereon being too small, and has stated a proposition thereon in its brief. In view of the fact that there was no assessment of recovery in any amount in favor of appellant on its counterclaim, the reason for a new trial stated above is not a ground therefor, as we are not permitted to recognize any not specifically named in section 585, Burns' 1914. Over v. Dehne (1906) 38 Ind. App. 427, 75 N. E. 664, 76 N. E. 883;Cooley v....
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