Speeder Cycle Co. v. Teeters

• Decision Date: 24 November 1897
• Citation: 48 N.E. 595,18 Ind.App. 474
• Parties: SPEEDER CYCLE CO. v. TEETERS.
• Court: Indiana Appellate Court

18 Ind.App. 474

48 N.E. 595

SPEEDER CYCLE CO.

v.TEETERS.^*

Appellate Court of Indiana.

Nov. 24, 1897.

Appeal from circuit court, Henry county; E. H. Bundy, Judge.

Action by Charles Teeters against the Speeder Cycle Company. From a judgment for plaintiff, defendant appeals. Reversed.M. E. Forkner, for appellant. Wm. O. Barnard and John M. Morris, for appellee.

WILEY, J.

Appellee sued appellant, which is a corporation, under an alleged contract of service, and recovered judgment for $62.81. The complaint is in three paragraphs. The first paragraph counts upon a verbal contract made directly with appellant on or about July 15, 1894, whereby it was agreed that appellee should enter into its employ, in the capacity of mechanic and builder and maker of bicycles, until appellant should complete and commence to operate its factory; that appellee was to receive for his services $3.50 per day; and that after said factory should be in operation he was to be paid $4 per day. The first paragraph of the complaint further avers that appellant was to furnish appellee steady and continuous employment until said factory should be put in operation; that he (appellee) entered into said employment, and was ready and willing to continue therein, but that appellant failed and refused to give him steady and continuous employment, but only permitted him to work for 21 days; that he was ready and willing to perform the labor for appellant as agreed upon, but that appellant, long before it completed its said factory, and began to operate the same, wrongfully discharged him, and refused to give him any work to do, to his damage, etc. The second paragraph of complaint does not aver a contract directly with the appellant, but that the contract was made with Henry J. Adams and others, who represented to appellee that they were the owners of certain letters patent, and that they were about to form themselves into a corporation for the manufacture of bicycles and attachments under said letters patent; that they desired to employ appellee for and on behalf of the proposed corporation; that afterwards they did employ him, representing to him that the company was formed and ready to be incorporated, and that they were the sole owners of the stock. It is further alleged that, pursuant to said employment, he began to work for the company; that the company paid him his wages, but afterwards discharged him. The term and conditions of appellee's employment, as set out in the second paragraph of complaint, are, in substance, the same as the first. He bases his right of recovery, not upon unpaid wages, but upon the alleged breach of the executory contract. The third paragraph is like the second in all substantial respects, except that it avers a ratification by appellant of the contract between appellee and Henry J. Adams and others, its promoters. The averment of ratification is as follows: “That afterwards, on the 18th day of July, 1894, and after the said defendant company had been incorporated as aforesaid, the plaintiff and the defendant company ratified and confirmed the agreement made as aforesaid, and said plaintiff entered into the employment of said defendant under said agreement, and that defendant company began to construct and build its factory,” etc. Appellant demurred to each paragraph of the complaint, which was overruled, and such ruling is one of the errors assigned here. Appellant contends that neither paragraph is sufficient to withstand a demurrer, and we will consider the objections urged in their order, as presented by the learned counsel.

It is insisted, first, that each paragraph is fatally defective because of uncertainty in the averments as to the term of employment. The rule seems to be well settled, by the great weight of authority, that where, by the terms of a contract, whether it be written or verbal, where the contract is one of employment, and by its terms the tenure of service cannot be determined, such contract is one at will, and may be terminated at any time, at the election of either party. The contract declared upon, as it appears from the complaint, is an executory one, for it signifies agreements or promises which create rights in personam. In the first paragraph of the complaint the term of appellee's employment is designated as follows: “That the defendant would furnish the plaintiff steady and continuous employment from and after July 15, 1894, until said factory should be put in operation.” In the second paragraph of complaint the term of the contract of employment was, in the language of the complaint, “from and after July 18, 1894, until it [appellant] should complete and commence to operate its bicycle factory, then intended to be built in New Castle, Ind.” It is further averred in this paragraph of the complaint that “the defendant refused to provide plaintiff employment, although its said factory is not yet completed ready to operate.” In the third the language used was “that if he [appellee] would enter into the employment of the defendant as mechanic, builder, and maker of bicycles and patterns and models * * * from and after July 18, 1894, until it should complete and commence to operate its bicycle factory then intended to be built, * * * the defendant would pay plaintiff for his services the price and wage of three dollars per day and that after such factory should be put in operation that he should be paid four dollars per day for his services.” It is apparent from all the averments of the complaint that appellee was seeking to recover damages for a wrongful discharge before the expiration of his contract, and not for wages already earned. It must be conceded that the contract was indefinite and uncertain as to the term of appellee's employment, in this: (1) That no time is fixed in which appellant's factory was to be completed or when it was to commence operations. (2) That after said factory should commence operations there is no averment as to the length of time he should remain in service of appellant, or how long the factory was to be operated. There is a clear distinction between indefinite and uncertain contracts of service and those where the terms of the contract are expressly fixed by the contract itself. In an action upon the latter class of contracts for a breach thereof for a wrongful discharge before the expiration of the time, there is a certain and definite...