Roder v. Niles

• Decision Date: 04 February 1916
• Docket Number: No. 8912.,8912.
• Citation: 61 Ind.App. 4,111 N.E. 340
• Parties: RODER v. NILES.
• Court: Indiana Appellate Court

61 Ind.App. 4

111 N.E. 340

RODER

v.NILES.

No. 8912.

Appellate Court of Indiana, Division No. 2.

Feb. 4, 1916.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by Robert Roder against Henry G. Niles, Jr. From a judgment for defendant, plaintiff appeals. Affirmed.

Samuel B. Pettingill, Lenn J. Oare, and Orie Parker, all of South Bend, for appellant. Graham & Crane, of South Bend, for appellee.

IBACH, C. J.

This is an appeal from a judgment for appellee in a suit brought by appellant to recover damages for his wrongful discharge during the term of his employment by appellee, and for additional damages claimed to have been sustained by him because of appellee's failure to issue to him a number of shares of the capital stock in a proposed corporation. The contract upon which the action is based and which is claimed to have been breached is the following:

“Nov. 3, 1911.

I, Henry G. Niles, Jr., personally guarantee that the following contract with Robert Roder will be fulfilled by the company to be formed about January, 1912, for the purpose of manufacturing gas mantles and other products at Miskawaka, Ind.:

First. The company, when formed, to issue to said Robert Roder, $750 worth of its stock, par value, in payment of certain supplies bought of said Roder.

Second. Said Robert Roder to be paid a salary of $20 per week in cash from July 1, 1911 to July 1, 1912, unless he severs his connection with the business prior to that time, when the weekly payment of $20 shall cease.

Third. On July 1, 1912, for the further and complete payment to Robert Roder for his services from July 1, 1911 to July 1, 1912, the company is to issue to said Robert Roder at par value the amount of stock equal to $20 for each and every week from July 1, 1911, that said Robert Roder has given his time to the development of the mantle business, provided that, should Robert Roder sever his connection with the business prior to July 1, 1912, the company is to issue to him stock at its par value for an aggregate amount equal to $20 per week for each and every week from July 1, 1911, that said Robert Roder has been with the company.

Further. That said Robert Roder is to have the privilege of selling his stock to the company on July 1, 1912, and that the company is to have the privilege of buying said Roder stock on July 1, 1912, at its book value, as shown by inventory at that time.

[Signed] Henry G. Niles, Jr.

Robert Roder.”

Appellant contends that the court erred in refusing to strike out appellee's third and fourth paragraphs of answer to the complaint,in overruling his demurrer to the same paragraphs of answer, and in the conclusions of law stated on the facts specially found.

[1][2] There is no merit in the first contention, because the permission to file the additional paragraphs of answer complained of was, under the facts of this case, within the sound discretion of the trial court. These paragraphs of answer were filed 11 days before the trial. The third paragraph avers that at the time of and contemporaneous with the execution of the written contract sued on, and as a consideration for its execution, the parties entered into an oral agreement, in substance, that plaintiff was an expert gas mantle builder and had valuable formulæ for the manufacture of marketable gas mantles, and that he also had suitable machinery for equipping a plant of that kind which he agreed to sell to defendant for $750; that plaintiff would organize and build up a gas mantle manufacturing business for defendant and put it on a paying basis, so that defendant might profitably incorporate the business. Plaintiff also agreed to instruct defendant and his employés in the various processes employed by him in the manufacture of the mantles and devote his entire time to the business. Defendant performed the conditions required of him by the oral agreement, as well as the written one, but the plaintiff failed and refused to do what was required of him, and he was not an expert mantle maker, did not possess valuable formulæ, did not own suitable machinery for the business, and failed to sell and deliver suitable machinery therefor, and that which he did furnish was wholly valueless, so that the mantles which plaintiff did manufacture were of an inferior quality, and they were placed on the market before defendant discovered that they were not marketable, and resulted in the destruction of defendant's business. Plaintiff did not instruct defendant's employés in the art of making mantles as he agreed to do, and did not devote his entire time to the business, but voluntarily left defendant's employ on May 6, 1912. It is also averred that before the action was brought defendant offered to return to plaintiff the machinery which he had furnished; that the business was a failure, because of plaintiff's breaches of the terms of the...