Seamless Pressed Steel & Mfg. Co. v. Monroe

Decision Date30 October 1914
Docket NumberNo. 8411.,8411.
Citation57 Ind.App. 136,106 N.E. 538
CourtIndiana Appellate Court
PartiesSEAMLESS PRESSED STEEL & MFG. CO. v. MONROE.

OPINION TEXT STARTS HERE

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

Action by Gilbert K. Monroe against the Seamless Pressed Steel & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.John M. Smith and Roscoe D. Wheat, both of Portland, for appellant. Barnes & Mills, of Sidney, Ohio, Frank B. Jaqua, of Washington, D. C., for appellee.

HOTTEL, J.

The second paragraph of complaint in which this case was tried, hereinafter referred to as the complaint, is as follows:

“*** Plaintiff complains of the defendant and says: That the defendant is a corporation organized under the laws of the state of Ohio. That on the 11th day of November, 1909, plaintiff and defendant entered into a written contract whereby, among other things, the defendant employed plaintiff to devote his time and services in securing a factory location together with a franchise for electric light and power plant, at and for the consideration therein stated of $4,000, payable in cash upon the delivery and acceptance by said defendant of said franchise, a copy of which said written contract is filed herewith, made a part hereof, and marked Exhibit A. That, after the execution of said written contract as aforesaid, plaintiff did devote his time and service in securing a factory location together with a franchise for electric light and power plant, all as provided for in said written contract, and did secure location and franchise, which was received and accepted by said defendant. That said defendant has wholly failed and refused to pay to plaintiff said sum of $4,000 for his services, as in said contract provided. Wherefore,” etc.

That part of the exhibit important in the determination of the questions herein considered provides as follows:

“The party of the first part (appellant) does hereby and by this instrument appoint, name and constitute party of the second part (appellee) as its exclusive financial agent or representative for the sale of $50,000 worth of its issue of 5 per cent. preferred stock, said agency hereby created being by the parties hereto partially based upon the third paragraph of the proposal of the party of the first part to the Citizens' and Commercial Club of Redkey, Indiana, which proposal was duly accepted by said Citizens' and Commercial Club of Redkey, Indiana, wherein the said Citizens' and Commercial Club aforesaid pledged their exclusive co-operation in marketing the sum of $60,000 worth of the preferred stock in the company of the party of the first part to this contract, for a period of one year from the date hereof, and further empowers party of second part to seek and secure a location for a factory and electric light and power plant for first party at such point as may be mutually satisfactory to each party hereto. In consideration of second party devoting his time and services for securing said factory location together with a franchise for electric light and power plant, first party agrees to pay second party the sum of $4,000 whenever said franchise is delivered and accepted by first party. Payment of said money for such specific service rendered to be made in cash. In consideration of second party disposing of the preferred stock of first party, he shall be paid a commission of 10 per cent. for such services. Said commission to be reckoned on the value of stock disposed of and payable immediately after sales are closed.”

A demurrer to this complaint was overruled. Appellant then filed an affirmative answer in two paragraphs and a counterclaim. A demurrer to each of these pleadings was sustained and the cause put at issue by general denial, and an agreement entered of record that all defenses might be made under such denial. There was a trial by the court and a finding for appellee in the sum of $4,550. A motion for new trial was overruled, and judgment rendered for appellee on the finding. The assigned errors on which appellant relies for reversal are the rulings on the demurrer to the complaint and on the motion for new trial.

If a strict construction of the rules governing appellate procedure were applied to appellant's briefs, it is doubtful whether they present any question for our consideration, but we have given appellant the benefit of this doubt and considered those questions which such briefs indicate were intended to be presented.

[1] It is first insisted that the complaint is insufficient because (we quote from appellant's brief):

“The proposal and contract with the Commercial Club of Redkey is a part of the contract sued on and is not set out or referred to in the second paragraph of complaint or made an exhibit thereof.”

Appellant's accepted proposal to the Citizens' and Commercial Club of Redkey was no part of the contract between it and appellee, on which this action was based.

“When a written instrument is not the basis of the action or defense, but is only referred to as one among other facts material to the pleading, a copy or exhibit need not be filed with or made a part of the pleading.” Vandalia R. Co. v. Fetters, 40 Ind. App. 615, 617, 82 N. E. 978;Bird v. St. John's, etc., Church, 154 Ind. 138, 152, 56 N. E. 129;Phoenix Ins. Co. v. Stark, 120 Ind. 444, 448, 22 N. E. 413;Federal, etc., Co. v. Arnold, 46 Ind. App. 114, 117, 90 N. E. 493, 91 N. E. 357.

It is next insisted by appellant that its charter, at the time the contract was entered into, limited its operations to Quincy, Ohio, and did not permit it to do business in a foreign state, and that appellee, knowing such fact, could not enter into a contract that would be binding on the appellant corporation to locate it in another state and receive pay for doing an unauthorized act, or, in other words, that appellee's contract with appellant is ultra vires.

[2] If this contention of appellant is intended as an objection to the complaint (a thing we are unable to determine from its brief), the answer is that none of the facts set out in the objection appear on the face of the complaint or the exhibit filed therewith. There is nothing appearing from either the complaint or the exhibit that even tends to show any limitation or restriction on appellant's authority to contract, or that tends to show that, in making with appellee the contract sued on, it exceeded either the authority given by its articles of incorporation or by the law under which such corporation was created.

[3] We assume that the other points stated by appellant in its brief, and possibly the one last above considered, are intended to be addressed or applied to those...

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9 cases
  • Huntington Brewing Company v. McGrew
    • United States
    • Court of Appeals of Indiana
    • May 11, 1916
    ...... involved." Wright v. Hughes,. supra; Seamless, etc., Mfg. Co. v. Monroe (1914), 57 Ind.App. 136, 143, ......
  • Umbstead v. Preachers' Aid Soc. of Northwest Indiana Conference of Methodist Episcopal Church
    • United States
    • Supreme Court of Indiana
    • December 29, 1944
    ......Seamless, etc., Mfg. Co. v. Monroe, 1914, 57 Ind.App. 136, 143, 106 ......
  • Huntington Brewing Co. v. McGrew
    • United States
    • Court of Appeals of Indiana
    • May 11, 1916
    ...so only where the most persuasive considerations of public policy are involved.” Wright v. Hughes, supra; Seamless, etc., Mfg. Co. v. Monroe, 57 Ind. App. 136, 143, 106 N. E. 538, and cases cited. [5] “Where a corporation makes a contract that is in excess of its chartered powers, it may we......
  • Elkhart Cnty. Nat. Farm Loan Ass'n v. Heilman
    • United States
    • Court of Appeals of Indiana
    • June 18, 1935
    ...said contention, including Wright v. Hughes (1889) 119 Ind. 324, 21 N. E. 907, 12 Am. St. Rep. 412, and Seamless Pressed Steel & Mfg. Co. v. Monroe (1914) 57 Ind. App. 136, 106 N. E. 538. Both of said cases are directly in point, and sustain appellee's said contention. Appellant's counsel a......
  • Request a trial to view additional results

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