Portland Foundry & Mach. Co. v. Gibson

• Decision Date: 27 January 1916
• Docket Number: No. 22928.,22928.
• Citation: 184 Ind. 342,111 N.E. 184
• Court: Indiana Supreme Court
• Parties: PORTLAND FOUNDRY & MACHINE CO. v. GIBSON.

184 Ind. 342

111 N.E. 184

PORTLAND FOUNDRY & MACHINE CO.

v.GIBSON.

No. 22928.

Supreme Court of Indiana.

Jan. 27, 1916.

Appeal from Circuit Court, Jay County; James J. Moran, Judge.

Action by Jacob M. Gibson against the Portland Foundry & Machine Company. Judgment for plaintiff, and defendant appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Affirmed.

Frank B. Jaqua and Charles E. Schwartz, both of Portland, for appellant. Roscoe D. Wheat, of Portland, for appellee.

SPENCER, J.

This action is for the recovery of salary alleged to be due under a certain written contract by which appellee agreed to become and act as superintendent of the plant of appellant at Portland. That clause of said contract which gives rise to this controversy is as follows:

“As a guaranty of the faithful performance of contract the party of the second part [appellee] promises to deposit in the First National Bank of Portland, Indiana, the sum of $50.00 (fifty dollars) each month for a period of six (6) months, beginning August 1, 1910, and the same to be left or demand in this bank, provided the party of the second part willfully violates this contract by leaving the employment of this company [appellant] without permission being granted by the board of directors.”

Appellee began work as superintendent on June 1, 1910, and continued as such superintendent until February 16, 1911. Subsequent to the execution of said contract, however, the quoted part thereof was modified by parol in that the $50 each month was to be retained by the company and credited to appellee on the books of such company. It is on this parol change in said contract that this controversy turns. Appellant contends that under this parol change the amount of $300 was to be retained by it during the entire life of the contract of employment-two years-and if, at any stage thereof, appellee quit said employment without cause, said amount was to be forfeited and to be retained by appellant as liquidated damages for the breach of the contract. Appellee insists, however, that $50 of his salary was to be left with appellant for each of the first six months of his employment, or until the sum of $300 was so credited to him, when he should be entitled to draw the same; that on the last pay day in January, 1911, appellant had thus retained of appellee's salary the sum of $300. There was a conflict in the evidence on this point.

The complaint was in three paragraphs. Answer in denial, plea of payment, and setoff. Reply to affirmative answers in denial. Trial by jury, verdict for appellee in the sum of $300, and judgment accordingly.

[1] The alleged errors presented by the assignment that the court erred in overruling appellant's motion for a new trial are numerous, but, for the purposes of this opinion, they may properly be grouped under general heads. In the first instance, it is insisted that the court erred in overruling the motion to strike out certain allegations in the first and third paragraphs of complaint which had reference to the recovery of penalties and attorneys fees under a statute not applicable to this action. But, as there was no evidence submitted to the jury on these issues, and the jury was specifically instructed with reference thereto, it is clear that the ruling on the motion to strike...