Riley v. Walker

• Decision Date: 10 May 1893
• Docket Number: 695
• Citation: 34 N.E. 100,6 Ind.App. 622
• Parties: RILEY v. WALKER
• Court: Indiana Appellate Court

34 N.E. 100

6 Ind.App. 622

RILEY v. WALKER

No. 695

Court of Appeals of Indiana

May 10, 1893

From the Marion Superior Court.

W. P Kappes, for appellant.

F Winter and J. B. Elam, for appellee.

LOTZ J. ROSS, J., concurs.

OPINION

LOTZ, J.

This action was brought by the appellee against the appellant to recover damages for the alleged breach of a contract.

Appellant demurred to the complaint; his demurrer was overruled, to which he saved an exception; the cause was then put at issue and tried by the court; the court, at the request of parties, made a special finding of the facts, and stated the conclusions of law thereon. Appellant excepted to the first and third conclusions of law, and made a motion for a venire de novo, a motion for a new trial, and in arrest of judgment, and for a judgment in his favor on the special findings, each of which motions was overruled, and proper exceptions taken. On appeal to the general term, the judgment of the special term was affirmed. The complaint reads as follows:

"The plaintiff Amos J. Walker complains of the defendant James Whitcomb Riley, and says, that heretofore, to wit, on the first day of April, 1885, the plaintiff and the defendant entered into a contract in writing in partnership, in the giving of lectures by said James Whitcomb Riley, which partnership was to continue for the term of five years, and, by the terms of which, said James Whitcomb Riley was to devote his time to the delivery of lectures, and to meet all demands on him for such services, and the said Amos J. Walker was to be the business manager of said partnership, and to make all contracts with persons desiring lectures by said Riley. The net proceeds of such lectures, after defraying all expenses, were to be divided equally between said Riley and said Walker.

"Thereafter, to wit, on the day of October, 1889, while the said partnership was in full force, a contract was entered into between the plaintiff and the defendant on the one part, and Edgar W. Nye and James B. Pond on the other part, whereby it was agreed that said Riley should be engaged by said Nye and Pond to give public readings in conjunction with said Nye, in such cities and towns in the United States and Canada, as said Nye and Pond should select; such readings not to exceed six (6) public appearances in each week, nor to be less than four, and to begin not later than the 22d of October, 1889, and to continue until the first of April, 1890, except the week known as holiday week, from December 24th to December 29th, 1889, which was to be optional with said Nye and Pond. It was further agreed that said Riley should not appear in public under any other auspices than those of said Nye and Pond, during said term, without the written consent of said Nye and Pond; that in case of the serious illness of said Nye or Riley, the said agreement should not be enforced during such inability, and that the management of such entertainments should be exclusively under the control of said Pond.

"In consideration of the services to be rendered by said Riley as provided by the said contract, said Nye and Pond undertook and agreed to pay said Riley the sum of sixty dollars ($ 60) for each public entertainment which should be given, and all traveling expenses, including sleeping-car fare, payments to be made at the end of each week. And said Riley--at the time of making said contract, and as a part thereof, in consideration of the said contract of partnership hereinbefore mentioned, then existing between him and said Walker, and of the assent of said Walker to said contract with said Nye and Pond, which assent the said Walker then and there give--undertook, promised and agreed to pay to said Walker one-third of the said sum of sixty dollars for each entertainment, which, as aforesaid, was agreed to be paid to said Riley by said Nye and Pond. And at the same time, and as a part of the same arrangement, and in consideration of the agreement aforesaid of said Riley to give public readings under the auspices of said Nye and Pond, said Nye and Pond undertook and agreed to pay said Walker the sum of fifty dollars ($ 50) a week, during the entire term to which said contract was to extend, for services to be rendered by him as traveling agent.

"Plaintiff avers that upon said contract being entered into, said Nye and Pond selected the cities in the United States and Canada, at which such public readings were to be given, and made out a schedule thereof, extending to the first day of April, 1890, and embracing entertainments to be given at the cities so selected, from day to day, from the 22d day of October, 1889, to the first day of April, 1890.

"And thereupon, all parties to the said contract entered upon the execution thereof; the said Riley appearing and giving public readings at the dates and places named in such schedule, and the plaintiff, acting as traveling agent, as he had undertaken to do, and the said Nye and Pond paying to said Riley his traveling expenses and the sum of sixty dollars ($ 60) for each reading by him given, and to this plaintiff the sum of fifty dollars ($ 50) per week for his services as traveling agent, as they had agreed to do, and said Riley paying over to this plaintiff one-third of said sum of sixty dollars ($ 60) for each entertainment, in all respects according to the terms of said contract. And the plaintiff avers that he and the said Nye and Pond fully performed said contract in respect of all the obligations to be performed by them thereunder.

"But plaintiff avers that said Riley failed and refused to perform the said contract in this respect, to wit: on January 17, 1890, at Madison, Wisconsin, and on the day of , 1890, at , which cities had been selected by said Nye and Pond for public readings to be given by said Riley at the said dates respectively, and which were embraced in the schedule adopted by them, as hereinbefore stated, said Riley, without any just cause for so doing, failed and refused to read or take any part in the entertainments scheduled as aforesaid, to be given at said places at said dates, by reason of which such entertainments could not be given. And afterwards, to wit, on the 30th day of January, 1890, said Riley, without any just cause, or sufficient reason for so doing, announced to plaintiff and to said Nye and Pond, that he would not appear at any of the entertainments which remained to be given in the future, between that date and the first day of April, 1890, and that he would not give any more public readings under said contract, or further perform the same in any way, whereupon said Nye and Pond abandoned the giving of any further entertainments under said contract in conjunction with said Riley, and discharged the said plaintiff from their employ as traveling agent, all of which was done solely on account of the refusal aforesaid of said Riley to perform said contract in any way; nor did said Riley thereafter further perform the said contract in any way. Plaintiff avers that the following cities in the United States and British Columbia had been selected by said Nye and Pond, and included in the schedule aforesaid as places at which public readings would be given under said contract by said Riley in conjunction with said Nye, between the 30th day of January, 1890, and the 1st day of April, 1890, and the date of the entertainment at each city as fixed in said schedule, being stated below, opposite the names of such city."

Then follows a schedule of the time and place of entertainments. Following the schedule is the prayer, which is in these words, viz.: "Wherefore, plaintiff says he has sustained damages in the sum of one thousand dollars, for which he demands judgment."

Appellant asserts that the case made by the complaint is one for a money demand upon an express contract, and as such it is wanting in an averment that the claim is due and unpaid. If the premises be true, the conclusion necessarily follows, for it is well settled that in a suit for a money demand upon a contract express or implied, the complaint must show in some manner that the claim, or some part thereof, is due and unpaid. Goodman v. Gordon, 87 Ind. 126; Pace v. Grove, 26 Ind. 26; Howorth v. Scarce, 29 Ind. 278; Seldonridge v. Connable, 32 Ind. 375; Green v. Louthain, 49 Ind. 139.

The reason for the rule is that, in every action to recover damages for the breach of a contract, the breach must be averred, either in direct terms or by the statement of facts from which it is necessarily inferred. It is essential not only to show a breach, but a continuation of the breach, and in certain kind of cases this can be fully done by the use of the term "due and unpaid." If the obligation of a contract be to pay money simply at a certain time, and is independent of any other condition, then an allegation that the defendant failed to pay when it became due, sufficiently shows the breach, but, standing alone, does not make the complaint good, for after the breach payment may have been made; but the words due and unpaid fully show the right of action.

If the stipulations of a contract require something more to be done than simply to pay money; that is, if one party...