Van Horn v. Lincoln Sales Outlet Co.
| Decision Date | 01 June 1934 |
| Docket Number | 28901 |
| Citation | 255 N.W. 36,127 Neb. 301 |
| Parties | ANDREW G. VAN HORN, APPELLEE, v. LINCOLN SALES OUTLET COMPANY: CHARLES A. CRIST ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.
REVERSED AND REMANDED.
Syllabus by the Court.
1. A demurrer is an admission of the truth of all facts properly averred in the pleading demurred to; it admits, however, only such facts as are well pleaded and all intendments and inferences that may fairly and reasonably be drawn therefrom.
2. Plaintiff's petition seeks to recover wages and mileage under an oral contract of employment as general manager of a partnership, thus presenting a law action. Defendant's cross-petition alleges the partnership, the employment of plaintiff as general manager thereof, and the written articles of partnership, wherein plaintiff as such general manager shall draw no salary for his services, and prays for an accounting in equity between the parties. To this cross-petition plaintiff demurs, one of the grounds of demurrer being for the reason that said cross-petition does not contain matter proper or sufficient to constitute a counterclaim or set-off to the subject of the action set up in plaintiff's petition. Held, demurrer should be overruled and the cause tried to the court without the intervention of a jury.
Appeal from District Court, Lancaster County; Frost, Judge.
Action by Andrew G. Van Horn against the Lincoln Sales Outlet Company, impleaded with Charles A. Crist and Earl R. Crist, wherein Charles A. Crist and Earl R. Crist filed cross-petitions. From an adverse ruling, Charles A. Crist and Earl R. Crist appeal.
Judgment reversed and cause remanded.
J. J. Marx, for appellants.
O. B. Clark, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and MESSMORE, District Judge.
This is an appeal from the ruling of the district court for Lancaster county, wherein that court sustained a demurrer of plaintiff, appellee herein, to the cross-petition of defendants, appellants herein.
Plaintiff's petition alleges his employment by the Lincoln Sales Outlet Company, a partnership, and Charles A. Crist and Earl R. Crist; that on January 1, 1931, plaintiff at the special instance and request of defendants, and each of them, entered into the employ of defendants as manager of the Lincoln Sales Outlet Company and of the Lincoln Sales Outlet store and continued in said employment until on or about January 1, 1932; that defendants orally agreed to pay plaintiff for his services the sum of $ 50 a week for each and every week plaintiff was employed by defendants, and in addition thereto the sum of six cents a mile for each mile traveled by plaintiff in his automobile on the business of defendants, and further agreed to pay plaintiff in addition to said six cents a mile traveled the fair and reasonable value of each and every mile traveled by plaintiff in his automobile while he was transporting merchandise for the defendants, and that the fair and reasonable value of each mile traveled without merchandise was six cents a mile and the fair and reasonable value of each mile traveled while transporting merchandise was twenty cents a mile. Said petition also sets forth the number of miles traveled while hauling merchandise and the number of miles so traveled without transporting merchandise, under said agreement, the period of employment, and the usual prayer for a money judgment.
To the petition defendants filed an answer, setting forth the partnership as alleged in the petition, and that on May 27, 1930, until about July 8, 1931, the partnership consisted of plaintiff, one Charles Venner, and the defendants, Earl R. Crist and Charles A. Crist; that subsequent to July 8, 1931, until on or about January 1, 1932, when plaintiff became connected with a competitive firm, the partners in said partnership consisted of plaintiff and said defendants; admits that plaintiff was general manager of said partnership business from its beginning until he became connected with a competitive business firm; alleges further that under written articles of partnership plaintiff was given general charge of the business of said firm, and was to draw no salary for his services, except to share in the profits of said partnership; admits that under the articles of partnership plaintiff was to receive for his traveling expenses six cents a mile while traveling on the firm's business for the distance actually covered, but no sum or sums whatever for hotel bills; denies each and every allegation and statement contained in the petition, except those expressly admitted, and alleging payment to plaintiff in full of his mileage actually covered in the firm's business.
Defendants also filed a cross-petition, setting forth the same subject-matter as contained in the answer, the articles of partnership in detail, the interests of the parties thereunder, the payments made, and asking for an accounting.
To the cross-petition plaintiff filed a demurrer in the following language: "Comes now the above named plaintiff and demurs to the cross-petition of Charles A. Crist and Earl R. Crist, defendants, heretofore filed herein, for the reason that the matter contained in said cross-petition is not responsive to the issues tendered by the matter set out in plaintiff's petition, and for the reason that said cross-petition does not contain matter proper or sufficient to constitute a counterclaim or set-off to the subject of the action set up in plaintiff's petition, and does not contain matter proper or sufficient to constitute a defense to the cause of action set up in plaintiff's petition." This demurrer was sustained by the lower court, the defendants appealing from such ruling.
It is obvious from the nature of the cross-petition that the relief asked for therein was equitable in its nature, and...
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