Scholz v. Schneck

• Decision Date: 10 May 1910
• Docket Number: 21,475
• Parties: Scholz v. Schneck, Administrator
• Court: Indiana Supreme Court

91 N.E. 730

174 Ind. 186

Scholz v. Schneck, Administrator

No. 21,475

Supreme Court of Indiana

May 10, 1910

From Jackson Circuit Court; John M. Lewis, Special Judge.

Claim by Frederick J. Scholz against Benjamin F. Schneck, as administrator of the estate of Louis Schneck, deceased. From a judgment for defendant, claimant appeals. Affirmed. (Transferred from the Appellate Court under § 1399 Burns 1908, Acts 1901 p. 565, § 15.)

Affirmed.

Spencer & Brill, Wood & Jones, and Robinson & Stilwell for appellant.

George H. Voigt and T. M. Honan, for appellee.

Hadley C. J. Montgomery, J., did not participate.

OPINION

Hadley, C. J.

Appellant filed his claim against the estate of Louis Schneck deceased, to recover for services rendered decedent under a special contract, which said services are expressed as follows: "Assisting said Schneck to buy the street railway system in the city of Jeffersonville, in connection with the contemplated construction of a traction line from New Albany to Sellersburg; to personal examination and report on the street railway property in the city of Jeffersonville; to examination and report on the proposed route of said road from Jeffersonville to New Albany, and proposed purchase of the pike in Floyd county; to expenses, time and services in making a trip to the city of New York in behalf of said roads," for which services, it is alleged, decedent agreed to pay claimant the sum of $ 5,000.

No answer was filed by the administrator. The claim was tried before the court, disallowed upon a special finding of facts, and claimant appeals.

It is alleged that the court erred in its conclusions of law upon the facts found in overruling claimant's motion for judgment in his favor on the special findings, and in overruling his motion for a new trial. The special findings are, in part, as follows: "In 1902, the Jeffersonville, New Albany and Sellersburg Rapid Transit Company, a corporation, contemplated building a traction line from New Albany to Jeffersonville in connection with a traction line from New Albany to Sellersburg, and buying the street railway system in the city of Jeffersonville. Decedent, Louis Schneck, was then the president of said corporation. In that year the claimant, Frederick A. Scholz, and Louis Schneck entered into a contract under which said Scholz agreed to assist said Schneck in buying the street railway system in the city of Jeffersonville, in building a traction line connecting the city of Jeffersonville with the city of New Albany, in connection with the contemplated construction of a traction line from New Albany to Sellersburg. He further agreed personally to examine and report on the street railway property in the city of Jeffersonville, to examine and report on the proposed route of said road from Jeffersonville to New Albany in the proposed purchase of a pike road in Floyd county, and to make a trip to New York in the interest of said road. * * * (4) At the time said Schneck entered into said contract with said Scholz, he (Schneck) was acting as president of said corporation, for and on behalf of said corporation, and said Scholz was acting for himself. (5) At the time said Scholz entered into said contract with said Schneck, he, said Scholz, believed that said Schneck was acting for himself in the matter. (6) Said contract was in parol. (7) In said contract it was orally agreed that said Scholz should receive for his services, when performed, the sum of $ 5,000. (8) Said Scholz, after the execution of said contract, and while it was in force, made an examination of said proposed route between said cities of Jeffersonville and New Albany, made a trip to the city of New York in the interest of said road, attended a meeting of the common council of the city of New Albany at a time when the question of granting a franchise to the Jeffersonville, New Albany and Sellersburg Rapid Transit Company was before said council, and made inquiry with reference to the purchase of said pike in Floyd county. (9) Said Scholz did not assist in buying the street railway system in the city of Jeffersonville, did not assist in building a traction line connecting the city of Jeffersonville with the city of New Albany, did not examine the street railway property in said city of Jeffersonville, did not make a report on the street railway property in said city of Jeffersonville, did not make a report on the proposed route between said cities, and did not assist in the purchase of a pike in Floyd county."

Upon these findings the court's conclusions of law were (1) that the law was with defendant, and (2) that said Scholz is not entitled to recover on the contract herein sued on. Appellee's motion for judgment on the special finding and conclusions of law was sustained, and this ruling claims our first attention.

The statute (§ 2828 Burns 1908, Acts 1883 p. 151, § 5) requires a plaintiff to state a particular and sufficient claim, in writing, before the court will call upon defendant to answer, and then the latter is required only to answer the allegations of the complaint (§ 2842 Burns 1908, Acts 1883 p. 151, § 11). The issue being thus formed, the proof will be confined thereto, and if plaintiff's evidence makes out a different case, however meritorious, he must fail to recover. It would be futile and absurd to require plaintiff to state his cause of action, and defendant to disclose his defense, if either might be permitted on the trial to abandon his alleged cause or defense, and pursue or meet his adversary on wholly different grounds. So, it may be said that there is no rule of procedure better established than that the plaintiff must proceed on some definite theory, and recover on the case he makes in his complaint, or not at all. McAroy v. Wright (1865), 25 Ind. 22, 31; Paris v. Strong (1875), 51 Ind. 339, 343; Mescall v. Tully (1883), 91 Ind. 96, 99; Milburn v. Phillips (1894), 136 Ind. 680, 695, 34 N.E. 983; Boardman v. Griffin (1875), 52 Ind. 101; Peden v. Scott (1905), 35 Ind.App. 370, 73 N.E. 1099.

Under the rule, a party cannot sue on an oral contract and recover on a...