Pub. Sav. Ins. Co. of America v. Greenwald

• Decision Date: 30 January 1918
• Docket Number: No. 9463.,9463.
• Parties: PUBLIC SAVINGS INS. CO. OF AMERICA v. GREENWALD.
• Court: Indiana Appellate Court

68 Ind.App. 609

118 N.E. 556

PUBLIC SAVINGS INS. CO. OF AMERICA

v.GREENWALD.

No. 9463.

Appellate Court of Indiana.

Jan. 30, 1918.

Appeal from Superior Court, Marion County; Vincent G. Clifford, Judge.

Action by Henry Greenwald against the Public Savings Insurance Company of America, wherein defendant filed a counterclaim. Judgment for plaintiff, with order overruling motion for new trial, and defendant appeals. Affirmed.

Bernard Korbly and Willard New, both of Indianapolis, for appellant. Joseph R. Williams and Chalmer Schlosser, both of Indianapolis, for appellee.

BATMAN, P. J.

Appellee sued appellant in the court below to recover on an alleged accountstated amounting to $55.60. Appellant answered by general denial, and also filed a counterclaim against appellee, in which it alleged, in substance, that it is a corporation engaged in the insurance business; that on the 30th day of October, 1914, it employed appellee, under a written contract, to act as agent for it in soliciting and writing insurance; that in pursuance of such contract, which is made a part of such counterclaim by exhibit, appellee acted as its agent for such purpose until about the 8th day of January, 1915; that during such time appellee solicited and wrote certain insurance policies on behalf of appellant, which were officially lapsed subsequent to said last-named date; that by the lapsing of said policies there was created against the account of appellee, under and by virtue of their said contract, a charge of $123.15, which is a just and valid claim against appellee in its favor; and that the amount which would otherwise be due appellee is withheld by it in accordance with the terms of their said contract. Appellant filed an answer to said counterclaim, in which he admitted the execution of the contract mentioned therein, and alleged facts showing his performance thereunder, a dispute in their account, threatened litigation, a settlement of such dispute, by an agreement that such employment should cease and such contract be at an end, a canvassing of their said account, and the striking of a balance due appellee, amounting to $55.50, which appellant agreed to pay, but had failed to do so. Trial was had by the court on the issued thus formed, resulting in a finding for appellee in the sum of $55.60, and judgment was rendered accordingly. Appellant filed a motion for a new trial, which was overruled, and has assigned such ruling in this court as the sole error on which it relies for reversal. Appellant bases its right to a new trial on the alleged reasons that the decision of the court is not sustained by sufficient evidence and is contrary to law.

The questions presented for our determination require a consideration of the evidence, which, briefly stated, tends to show that appellee was employed by appellant, under a written contract, to work for it in its insurance business; that such employment was made through its agent, C. Harlan, to whom appellee reported during the progress of his work, and who was charged with the duty of looking over his accounts and directing him as to his work; that, after appellee had worked for appellant a few months under such employment, some difference arose between them with reference to certain collections and because of such difference appellee did not pay over to appellant certain moneys he had collected for it in the course of his employment; that thereafter said C. Harlan called on appellee at his home in an effort to procure a settlement of such difference; that on such occasion appellee informed said Harlan that he would go down to appellant's office the next day and make settlement, and would then discontinue the employment; that appellee met said Harlan at the time and place agreed, where the account between appellant and appellee was then canvassed to determine the status of such account, with a view of making a final settlement and terminating appellee's employment under such written contract; that as a result of the canvass of such account for such purpose it was found that appellee owed appellant $59 on account of collections made, and appellant owed appellee $55.50 for services rendered; that said Harlan was unwilling to accept from appellee the difference between said accounts in settlement, but stated that the way to avoid trouble was for appellee to pay what he owed appellant, and that appellant would then pay him the said $55.50 in about a week; that appellee agreed to this arrangement, and in consideration of such promise so made to him gave said Harlan his check on the Farmers' Trust Company, payable to appellant, for the sum of $32.10; that said check was dated January 8, 1915, and bore on its face the following words, “Payment in full of all indebtedness,” and was so written to serve as a receipt as appellee stated at the time; that soon after receiving such check said Harlan took the same to said Trust Company, and after indorsing appellant's name thereon received the money therefor on its behalf; that appellee paid appellant the remainder of said $59 on Wednesday following such settlement; that in making such settlement no claim was made that anything further would become due appellant under said contract, but the amount to be paid appellee thereunder was definitely fixed and determined by said settlement to be $55.50, which was to be paid him within the time named.

[1] The contention arises over the effect of such settlement. Appellee contends that it resulted in an account stated, which is the subject of this action, and that there is evidence which at least tends to prove every material fact necessary to his recovery, while appellant asserts the contrary. It contends in effect that the evidence fails to show that such agent had any authority to bind appellant by an account stated, but, on the other hand, affirmatively shows that he had no such authority. In support of this contention appellant claims that, according to the provisions of the written contract of employment, such settlement, at the time it was made, could only result in an account stated by changing the terms of such contract, which by its express provision could only be done by its president; that there is no evidence which tends to prove that such officer made or authorized any change thereof, or that such change was ratified by it, and hence there was a failure to prove an account stated. On this...