Lead Opinion
“Whereas, on or about April 2, 1906, an accident occurred resulting in bodily injury to W. Albert Smock, of Indianapolis, Indiana: whereas-, said W. Albert Smock has made a claim on the American Car and Foundry Company for money compensation for such injury, asserting that said American Car and Foundry Company is legally liable for said accident and injury, which said legal liability said American Car and Foundry Company expressly denies: Now therefore, I, said W. Albert Smock, in full accord and satisfaction of such disputed claim, do hereby acknowledge the receipt of the sum of $350, to me in hand paid by said American Car and Foundry Company, and in consideration thereof, I, said W. Albert Smock, do hereby remise, release and forever discharge the said American Car and Foundry Company, its successors and assigns, from any and all actions, causes of action, claims and demands, for, upon, or by reason of any damage, loss, injury or suffering which heretofore has been, or which hereafter may be, sustained by me, said W. Albert Smock, in consequence of such accident and injury. In witness whereof I have hereunto set my hand and seal this 5th day of July, 1906.
W. A. Smock.
Signed, sealed and delivered in the presence of L. L. Asham, attorney for W. A. Smock.
Burr J. Scott.”
It is averred in the complaint, with a wealth of detail, that, in addition to the payment of the sum specified therein, appellant agreed to take appellee into its employ at $15 a week as soon as he was able to work, and keep him in its employ during the remainder of his life. The action is to recover for the breach of this contract. The issue upon which the case was tried was formed by a general denial. There was a verdict for appellee for $5,000, and judgment accordingly.
Appellant’s position is that the consideration stated in the instrument heretofore set out is in terms contractual, thereby precluding proof of any other or different consideration.
The consideration stated is by way of recital, and parol evidence is therefore admissible to show the true consideration. Stewart v. Chicago, etc., R. Co. (1895), 141 Ind. 55, 59; Pickett v. Green (1889), 120 Ind. 584, 588; Kentucky, etc., Cement Co. v. Cleveland (1892), 4 Ind. App. 171.
The question is not one of ratification by a principal, but of estoppel by election. Strosser v. City of Fort Wayne, supra.
In view of this conclusion, it is not necessary to discuss
Dissenting Opinion
Dissenting Opinion.
I am unable entirely to concur in the views expressed in the foregoing opinion of the court. Appellee’s case is predicated on a contract or promise, alleged to have been made by appellant to furnish appellee employment in its service. Appellant is a manufacturing corporation, with its principal offices in the city of St. Louis, and owning and operating two manufacturing plants in this State, one of them located in the city of Terre Haute and the other located in the city of Indianapolis, with a resident manager of its business in this State residing in Terre Haute. Appellee undertakes to sustain his complaint by proof of conversations had with appellant’s general foreman, who had charge of its manufacturing plant in Indianapolis, where the injury occurred, out of which the contract is alleged to have grown. It is therefore essential to appellee’s case that it appear that this person, with whom the alleged contract is said to have been made, was duly authorized by the company to transact said business. There is no conflict in the evidence in regard to the position in appellant’s service of this general foreman, or to the nature of his duty, nor is there any evidence that he was especially authorized by appellant to settle appellee’s claim for damages on account of his injury, or to settle any claims against the company for damages of any character; and the question presented is whether the power and authority "to make this contract can be implied from the facts and circumstances shown to exist.
When an agency is created by a written instrument, or the facts out of which it is claimed an agency arises are undisputed, the existence of the agency and the scope of the agent’s authority are questions of law for the court.
Here, the evidence shows that Baker, the man with whom appellee claims to have had dealings, had supervision of appellant’s manufacturing plant at Indianapolis; that he had authority to employ and discharge servants; that the general direction of the work carried on in the plant was under his charge; that it was a part of his duty to superintend the making of improvements in the plant, the sale for cash of some of its products, and, to a limited extent, the purchase of material to be used in the factory. It does not appear that he had anything to do with administering the business affairs of the company, nor that he had any authority to pay its debts, even where they were liquidated and uneontroverted, nor to settle unliquidated but admitted liabilities, much less to settle and pay demands for which the company expressly denied liability. The authority of Baker was clearly not coextensive with the business of his master, and was limited to those matters that were necessary and proper to be done in operating appellant’s manufacturing plant in the usual and accustomed way.
The authority of the agent must find its source in the intention of the principal, either express or implied. Where one is given supervision of a manufacturing plant, with implied authority to do all things necessary to be done in the usual and accustomed way and manner of carrying on and operating the plant, will such authority carry with it the authority to allow claims for damages for personal injuries to employes engaged in the work in such plant, and to contract for the settlement of such claims? The allowance of such claims and the settlements therefor are clearly not necessary to carrying on the work of the plant. While the injury grows out of the operation of the plant, the settlement of the question of the legal liability of the company therefor is not one that naturally appertains to the
We are cited by appellee to the eases of the American Tel., etc., Co. v. Green (1905), 164 Ind. 349, and American Quarries Co. v. Lay (1906), 37 Ind. App. 386, to support the proposition that the jury had a right to infer, from the relation that the evidence showed existed between the company and Baker, that Baker was authorized to make the contract sued on.
We think there is a very marked distinction between the cases cited and this case. In the case of the American Tel., etc., Co. v. Green, supra, appellee was in appellant’s employ, stringing wires upon poles, and while engaged in this work fell from one of the poles and was severely injured. One Tice was a district foreman in appellant’s service, and had immediate charge of the work in which appellee was engaged at the time of his injury. Tice procured from appellee a written release of all claims for damages against the company, as follows:
“Know all men by these presents, that I, John H. Green, of Hobart, Lake county, Indiana, in consideration of the sum of $1, and other good and valuable considerations, to me in hand paid by the American Telephone and Telegraph Company, the receipt of which is hereby acknowledged, have remised, released, etc., and by these presents do for myself, my heirs, etc., remise and release and forever discharge said American Telephone and Telegraph Company from any and all manner of actions, causes of action, claims and demands whatsoever, in law or in equity, which against the said American Telephone and Telegraph Company I ever had, now have, or which I, my heirs, executofs, administrators hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, and especially for and by reason of the accident which happened to me on January 11, 1902, when I fell from a pole,” etc.
In this case there is no evidence to show that Baker had anything whatever to do with the settlement of disputed claims for damages for personal injuries. He had nothing to do, so far as the evidence was brought to the minds of the jury, with procuring the written release. The written release was procured by the agent of the insurance company, and was sent by him to the company. It contained no allusion whatever to any negotiations or promises made by Baker, and did not indicate to the company that Baker had anything to do with it.
In the case of the American Quarries Co. v. Lay, supra, the written release executed by appellee to appellant showed on its face that it was executed upon the consideration that appellant sought to recover, and that the release was received and accepted with this recital in it, and was retained by the company.. It was witnessed by the company’s superintendent, delivered to him, and his authority to accept the release was not questioned. There was no room in that case to hold that the contract was not the contract of the company, and
It is insisted by appellee that appellant has ratified the contract by accepting the benefits thereof,' and by retaining them in its possession. There is no evidence that tends to show that the company, or the managing officers thereof, ever at any time prior to the bringing of the suit, had any knowledge whatever of the promise alleged in the complaint to have been made by its superintendent Baker to appellee. There is nothing shown in the evidence to put it on inquiry; nothing, that would justify an inference of any knowledge on this subject.
It is not pretended that appellant held out to the public that said superintendent had power or authority to settle claims of any character against said company; and while appellee insists that the jury might have found, from the circumstances that Baker testified that he made reports to the head office of his doings, that the company was informed of the contract Baker had made with appellee, there is no evidence that Baker reported such transaction. He expressly denies that he made such contract. It is not reasonable to presume that he made a report of any such character, and appellee knew that the release that he executed would be furnished the company, not through the hands of Baker, but through the hands of Scott, the insurance agent. He knew that the company held a policy of insurance that indemnified it against liability to him on account of his injury, and it was reasonable to suppose that the company, from the character of the instrument that appellee signed, would suppose that the consideration therein expressed was the full consideration for executing the release.
I cannot agree that appellee, by bringing this action and averring in his complaint that the consideration upon which
Appellee’s action is not brought to recover on the injury, nor is it a suit in equity to set aside the release, on the ground of fraud or mistake. It is simply an action at law, based on the breach of an express contract alleged to have been made by appellant to furnish appellee with employment. Appellant is not asserting any right whatever under the release. It simply denies that it made the promise appellee sues on, and this is the sole issue. The proposition that a person who has entered into a contract with another and fully performed all of its terms, can be put to an election of rights by the claim of the other party to the contract that he was induced to enter into it by some promise made by some one else, of which the contracting party on the other side had at the time no knowledge, and which the party making it had no authority from him to make, is, in my view, radically and fundamentally wrong, and no authority can be found that tends to sustain such proposition.
The cases cited in the opinion of the court, as sustaining this contention, are, to my mind, far away from the question. In the ease of Robb v. Voss (1894), 155 U. S. 3, 42, 15 Sup. Ct. 4, 39 L. Ed. 52, referred to as being in point upon this question to sustain the views of the court, a suit in equity had been instituted, making parties thereto, among others, the grantees named in a certain deed for premises therein described, and among other relief asked was that such deed be declared a mortgage, the amount due thereon fixed, and
In this case, appellant made a contract with appellee by which, in consideration of $350, appellee released appellant from a certain liability, and so far as appellant knows, $350 is the sole inducement for appellee’s entering into said contract. Can it be possible that a secret promise made by some unauthorized person, not brought to the knowledge of appellant when the contract between appellee and appellant is made, can affect the rights and liabilities of either party under the contract, made between themselves? I think not.
Evidence was submitted and instructions were given by the
Rehearing
On Petition for Rehearing.
Appellee was in the employ of appellant company. He was injured while in such service, and liability or no liability for damages on account thereof was a matter between them.
The complaint counts upon a parol promise averred to have been made in consideration of a written release of liability.
Appellant denied the claim so made. The issue was one of fact.
It being first averred and then established that appellee had surrendered his claim upon the consideration named, and it appearing that appellant had not only accepted the release so procured, but had asserted it at the trial, the doctrine, that “he who derives the advantage ought to sustain the burden,” is directly applicable. This is not a new doctrine; it is rather a principle than a doctrine.
Appellant might have set up by special plea that the contract sued on was made by persons who were not authorized to act for it in that behalf. Had it done so, a reply of the facts relied upon to overcome such lack of authority would have been proper. It did not plead such defense, but came into court holding and claiming under the contract, and thereby obviated the need of any further pleading by appellee.
The petition for rehearing is overruled.