81 Ind. App. 79 | Ind. Ct. App. | 1923
Action by appellant against appellee to recover the reasonable value of services rendered by appellant as general superintendent of appellee’s mines from April 1, 1911, to November 1, 1915. The cause came on for trial, and, at the close of the evidence, the court, on motion of appellee, peremptorily instructed the jury to return a verdict for appellee. Alleged errors assigned are: (1) Overruling demurrer to fifth paragraph of answer; (2) overruling motion for a new trial. The only reason for a new trial presented for consideration by this court is the action of the trial court in directing the verdict.
Material averments of the fifth paragraph of answer are, that on April 1, 1911, when appellant entered appellee’s employment, he was, and at all times thereafter during the time of his employment continued to be, a stockholder of appellee company; that appellant was paid for his services as such superintendent the sum of $125 ,per month throughout the period of his employment, such payment being made at the end of each month by check, which check, in each instance was accompanied by a separate statement that it was for appellant’s salary for the previous month; that these checks and accompanying statements were received and accepted by appellant, and the checks cashed as they were received; without objection on the part of appellant that the checks were not in full payment of his
The demurrer to this answer presents the question: Are the facts pleaded sufficient to constitute equitable estoppel? The principle of equitable estoppel rests upon the foundation of justice and fair dealing, and arises from the conduct of a party, using the word “conduct” in its broadest meaning as including his spoken words, his positive acts and his silence when there is a duty to speak. By reason of this principle, a person is concluded not only by what
Assuming the facts pleaded to be true, as we must in considering the demurrer, it appears that appellant, with full knowledge that appellee was being deceived and misled, and thereby, to its injury, caused to retain appellee in its employment, and to pay dividends to stockholders, including appellant. We hold the facts pleaded in the fifth paragraph of answer constitute the essential elements of estoppel, and that the court did not err in overruling the demurrer.
It is the theory of the complaint, and, on the trial of the cause, appellant testified, that his contract of employment did not fix the amount of his salary, the reasonable value of which was $350 per month. On the other hand, as was specially pleaded by the fourth
In passing upon a motion for a peremptory instruction, it is the duty of the trial court to accept as true all facts which the evidence tends to prove, and, as against the party requesting such instruction, must draw all inferences which the jury might reasonably draw. If the evidence is conflicting, it is only the evidence which is' favorable to the party against whom the instruction is asked, that can be considered. Lyons v. City of New Albany (1913), 54 Ind. App. 416, 103 N. E. 20; Varney v. Nat. City Bank (1923), 80 Ind. App. 598, 139 N. E. 326. It follows that the trial court erred in directing the verdict.
Judgment reversed, with instructions to grant a new trial.