36 Ind. App. 640 | Ind. Ct. App. | 1905
Appellee commenced two actions against appellant, one in the Superior Court of Marion County and the other in the Marion Circuit Court. By agreement of the parties the two causes were consolidated and tried as one in the superior court. After their consolidation appellee filed a fourth paragraph of complaint, as to that branch of the case originating in the circuit court, and a second amended complaint based upon two written contracts. Issues were joined, and by agreement of the parties the cause was submitted to a special commissioner, who heard the evidence and reported his findings to the court. He reported that, if certain items of expense were to be included, appellee would be indebted to appellant in the sum of $543.87-, and, if such items were excluded, appellant would be indebted to appellee in the sum of $461.60. The record, after showing that the special commissioner had filed his report, contains the following entry: “This cause having been submitted to the court upon the facts found and reported by Crate D. Bowen, special commissioner appointed by the court on agreement of the parties, and argument being heard, and the court, being advised, finds as follows,” etc. The court evidently excluded the items of expenses to which we have referred, and which will more definitely appear later in the opinion, and rendered a judgment for appellee for $451.60. Appellant moved for a new trial upon the ground that the finding of the court was not sustained by sufficient evidence and was contrary to law. The
It is strenuously urged by counsel for appellant that appellee is not entitled to recover, because his complaint proceeds upon the theory that appellant and appellee were partners, while it clearly appears from the record that no partnership existed. Upon this question it is only necessary to" say that if appellee proceeded upon the theory of a partnership existing between appellant and himself — and as to this we express no opinion — it was upon that branch of the case originating in the circuit court. As to all matters embraced in that branch of the case, the question of partnership is eliminated by the findings of the master, by which it appears that all matters in controversy grew out of the two written contracts which were the basis of that branch of the case originating in the superior court.
The second amended complaint, which was filed after the two causes were consolidated, does not proceed upon the theory of a partnership. This will be manifest by a reference to the important parts of the two contracts. The first was executed on the 18th day of December, 1896, in which it is stated that the Arthur Jordan Company was engaged in the manufacture and distribution of artificial ice, and was also the owner of a natural ice plant; that it was also the owner of horses, wagons, tools, etc., used in connection with said business; that, for the purpose of increasing the facilities for the distribution of ice and extending its trade and patronage, it, on said day, assumed the lease of a certain tract of land held by appellee, who transferred it to appellant; that appellee was the owner of certain horses, wagons, harness, tools, etc., • as shown by the exhibit attached to the contract. The contract then proceeds as follows: “LTow, therefore, said Allen Caylor is hereby employed by said Arthur Jordan Company as manager and superintendent of said city ice business of said company,
The second agreement, made between the parties on the 1st day of March, 1898, was for the purpose of continuing
We have only to consider the rights of the parties as they appear from the two written agreements and the facts upon which the court found for appellee. The rights of the parties-under the contract executed December 18, 1896, are fully adjudicated by the findings of the master and the finding and judgment of the court. It is disclosed by the findings of the master that the parties had a final settlement of their business growing out of that contract, in which it was determined and agreed that appellee was indebted to appellant in a large sum for which he executed his note, etc. The trial court also found that such settlement was made, that it still remains in full force, and that appellee is not entitled to an accounting of matters growing out of that contract.
As above stated, the first and second contracts are in all essential respects identical, and the real point of contention here is the construction of certain provisions in the second one.
- Appellant was engaged in business other than that of manufacturing, storing and selling ice, and it employed appellee to manage and superintend only that branch of the business which in the contract is designated as the “city ice business.” The contract required appellee to furnish, for the use of said business, horses, wagons, etc., described in a schedule, made part of the contract. That clause of the contract requiring appellee to furnish horses, etc., was as follows: “The expenses of shoeing, feeding and caring for said horses, and necessary repairing of said wagons, to be borne by said Arthur Jordan Company so long as said company shall continue to use them in said business (Our italics.) The contract provided that appellee’s com-, pensation for his services and the use of his horses, etc., was to be a sum, to be paid by appellant, equal to one-half of the net profits of said city ice business, such profits to
Those provisions of the contract above indicated by-italics must, when correctly construed, determine the rights of the parties. If the last-quoted expression “expenses as above set forth” refers back and includes “the expenses of shoeing, feeding and caring for said horses, and necessary repairing of said wagons,” then, under the findings of the master, appellee would be indebted to appellant in the sum of $543.8Y. If, however, appellant was chargeable with such expenses, independently of its city ice business, then the judgment is substantially correct. The point of the divergent contentions of the parties is, from these observations, plain. Appellant insists that the expression “all expenses and losses pertaining to the putting out of the ice” includes the expense of caring for, feeding and shoeing the horses and repairing the wagons,” etc.; while it is the theory of appellee, that the effect of such expression was to separate the caring for and shoeing of the horses, etc., from the other expenses of the business, and to cast that burden, not upon the department of appellant’s city ice business, but upon appellant, aside from that business.
It also appears from the master’s findings that for several months prior to August 1, 1898, when appellee retired from the business, weekly statements were prepared by the bookkeeper, from the books of the company pertaining to the city ice business, which included the expense of feeding and caring for the horses, and blacksmithing, and painting and repairing the wagons, as well as all other expenses incident to carrying on the business, and that said statements were submitted to and examined by appellee. The master further found that all of the time the parties were operating under the two contracts the expense of feeding, caring for and shoeing the horses, and repairing the wagons, was charged to the account and paid out of the funds of the city ice business, and that it was done with the knowledge of appellee.
The fourth subdivision of the summary of the master’s findings is as follows: “If the expense of feeding, shoeing and caring for the horses used in said city ice business, and the necessary repairing of all wagons during the entire period of operation under the contracts * * * is to be treated as an expense incident to said business and properly chargeable to the expense thereof, which your commissioner finds was so done by the parties hereto, then there is due the defendant Arthur Jordan Company from the plaintiff $543.87.” The master further found that in December, 1898, appellant and appellee had a tentative
There is no doubt of the construction given to the contracts by the parties. They construed them both by their acts and conduct, and they construed them to mean that the expense of feeding, shoeing and caring for the horses, and painting and repairing the wagons, was an expense incident to the city ice business, and properly chargeable to its account. This construction is a reasonable construction, and is in harmony with the intent of the parties as expressed by their contract. In this regard we do not think the contract is uncertain or ambiguous, and this construction does not infringe any of the rules to which we have referred. The fact that the second contract contains the identical provisions in regard to expenses connected with the business, and the basis of determining the net profits, as did the first, and the additional fact that the parties acted upon and construed the first as above indicated, are worthy of consideration as showing the course of the business, the intention of the parties, and the meaning of the like provisions of the second contract. This being true, but one conclusion is deducible, and that is, the court will adopt the construction of the contract put upon it by the conduct and acts of the parties, and enforce it accordingly. In doing this we do no violence to the contract, but, on the contrary, give it its plain and reasonable meaning. The master found that appellee was charged with $150, which was paid to him to be used in the purchase of horses to be used in the business, that he purchased with it three horses and put them in the business, and that he has never had credit for them; also, that he was entitled to an additional
Our conclusion is that the judgment should be reversed, and the trial court directed to render a judgment on the findings of the master for $249.87, with interest from the date of the former judgment; and it is so ordered.