Orton and Steinbrenner Company v. Miltonberger

• Citation: 129 N.E. 47,74 Ind.App. 462
• Decision Date: 17 December 1920
• Docket Number: 10,520
• Parties: ORTON AND STEINBRENNER COMPANY v. MILTONBERGER
• Court: Court of Appeals of Indiana

129 N.E. 47

74 Ind.App. 462

ORTON AND STEINBRENNER COMPANY v. MILTONBERGER

No. 10,520

Court of Appeals of Indiana

December 17, 1920

From Huntington Circuit Court; Nelson G. Hunter, Special Judge.

Action by Wesley A. Miltonberger against the Orton and Steinbrenner Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Charles R. Haller, for appellant.

John Q Cline and Claude Cline, for appellee.

OPINION

NICHOLS, J.

This was an action to recover a bonus brought by appellee against appellant.

To the complaint appellant filed its demurrer for want of facts with memorandum, so far as presented in this court, to the effect that the amount of the bonus was uncertain, and not stated, and that the contract was therefore unenforceable for uncertainty. Appellant says, in discussing this alleged error, that "to say to one about to enter your employ We will pay you two dollars per day and then there is a bonus' is not such an offer of payment of a bonus as could be impliedly accepted." The complaint, however, that is set out in appellant's brief has a more specific averment than the above interpretation thereof. It is therein averred that appellee entered appellant's employ "pursuant to a mutual agreement and understanding by which the plaintiff was to receive the sum of $ 2 per day for each day's labor that he might perform for said defendant corporation, and with the further agreement, both express and implied, that the plaintiff should participate in the distribution of a bonus at the end of the year 1917, the amount of said bonus to be determined from the amount of net earnings of said company and apportioned among the employes of said defendant corporation in proportion to the amount of wages received by each employe." The complaint then avers that appellee, working at $ 2 per day, drew wages in the sum of $ 278.50, and that at the end of the year a bonus of 156 per cent. of the amount of wages each employe drew was paid. We think the complaint was sufficient to withstand demurrer, but, even if it were not, with the conclusion we have reached, as hereinafter appears, that the special findings show a clear right of recovery, and that the conclusions of law are correct, the error would be harmless. Shank v. Trustees, etc. (1911), 47 Ind.App. 331, 88 N.E. 85, 93 N.E. 452.

It appears by the special findings that appellee, on March 12, 1917, entered the employ of appellant, a manufacturing corporation, with an express agreement and understanding that wages were to be paid to appellee at the rate of twenty cents per hour, with further conditions hereinafter set out. On January 13, 1917, appellant caused the following notice to be posted in at least three places in the factory:

"During the year 1917, the Orton-Steinbrenner Company will divide equally with its employees all excess profits remaining after 7% dividend on the total capital invested. The 7% dividend will be based on the inventory of Dec. 31, 1916, and will be calculated on the preferred stock which may be sold throughout 1917, the common stock (all of which is now sold), and the surplus as shown in the inventory. Half the remaining profits will be divided among the employees of the company, the share of each being determined as follows: The total wages of each employee in the service of the company on January 13, 1917, shall be multiplied by 1.2. The total wages of each employee beginning service prior to July 1, 1917, but not in the employ Jan. 13, 1917, shall be multiplied by 1.1. The total wages of each employee beginning service on or after July 1, 1917, shall be multiplied by 1.

"Each employee shall then be allotted a share of the available employees' part of the profit in the direct proportion that his product as above determined bears to total payroll increased as above provided he has met the following conditions:

"1. He must have worked 600 hours actual time for this company during 1917.

"2. He must work at least two weeks after resigning his position, if desired by those in charge.

"3. If not in the employ of the company on Dec. 31, 1917, he must have sent the company's office, either at Huntington or Chicago, the full address for forwarding his share so as to reach the office between December 25th and January 5th.

"4. He must have been in regular employ of the company and not temporarily employed for some specific job.

"The above plan for division of profits is purely voluntary on the part of the company and it is in no sense a contract. The fact that any employee is receiving the benefits of this plan shall not deprive the company of the right at any time to discharge such employee and thereby terminate his participation under the plan, nor shall any employee acquire any right thereunder to demand an accounting by the company concerning its business or profits.

"Distribution of profits will be made between January 5th and January 25, 1918. Should the employees' share of the profits amount to more than 25 per cent. of the yearly payroll, the company shall, however, have the option of withholding payment of the balance for not to exceed six months, paying interest at the rate of 7% per annum from January 25th.

"Orton & Steinbrenner Company."

At the time of employment of appellee, appellant's superintendent, who had charge of the employment of labor stated to appellee that it was the policy of the company to share the profits of the company with its employes. It was a matter of common knowledge and it was known to a...