62 Ind. App. 685 | Ind. Ct. App. | 1916
This was a suit, in the court below, by appellee, Rockhill, against appellant to recover one-half of $1,430.76, for postage refunded by the United States government to the appellant, Journal-Gazette Company. To the complaint the appellant, Journal-Gazette Company, filed a counterclaim, and both appellants answered the complaint by their separate and several set-off. Appellee’s demurrer was sustained to said answer of set-off, and this is the only error relied upon for reversal.
The answer of set-off reads as follows: “For a, second and further paragraph of answer by way of set-off to the plaintiff’s complaint the defendants separately and severally say, they admit that the Journal-Gazette Company collected- $1,430.76 of overpaid postage from the United States Government in the year 1913; that the plaintiff and the defendant, Moynihan, were the owners of a majority of the capital stock in the Journal Company; that the Journal Company is a corporation organized under the laws of the State of Indiana; that the
Appellee demurred to said answer for want of sufficient facts to constitute a defense to the complaint, for the following reasons: (1) “That each of said separate and several paragraphs of answers of the defendants is scandalous; that each sets up an unlawful agreement on the part of the defendants, Andrew J. Moynihan and the Journal-Gazette Company to procure an office for the plaintiff in consideration that plaintiff would share with said defendants the salary of said office or an equal amount to one-half of the salary of said office.” (2) “That each of said separate and several paragraphs of answers of said defendants sets up an unlawful and illegal agreement and one against public policy in this: That each of said paragraphs sets up that said defendants were to participate in one-half of plaintiff’s salary as postmaster, under the Federal Government in the city of Fort Wayne, during Grover Cleveland’s administration, or an amount equal to one-half of plaintiff’s salary as postmaster, as a consideration for said defendants’ procuring for said plaintiff the appointment of postmaster at the city of Fort Wayne, under said Grover Cleveland and through the Congressman of the Twelfth District, William W. McNagny.” (3) “That each of said separate' and several paragraphs of answers of said defendants sets up that which is unlawful and void and against public policy in this: That said defendants, because of their efforts on behalf of Grover Cleveland’s election as President of the United States, and the election of William F. McNagny, Congressman to the United States Congress from the Twelfth District of Indiana, and in consideration
Appellee contends that the contract between appellee and Moynihan, as disclosed by said answer, is against public policy and void, and his counsel assume in the argument that the contract amounts to an agreement to assign a part of appellee’s salary as postmaster, before the salary was earned, and an agreement to pool the salary with the income of the Journal Company. Appellee is well supported by the authorities upon the legal propositions for which he contends. The courts have uniformly refused to enforce agreements to assign the salary of a public officer before the same was earned.' We deem it unnecessary to set out the reasons for such refusal, in view of our construction of the agreement set out in appellants’ answer of set-off.
This answer discloses, in substance, that appellee Roekhill and said Moynihan were the owners of the capital stock of the Journal Company in equal proportions; that each was contributing all of his time to the publication of a newspaper and the conduct of the other business of the corporation; that appellee was offered the office of postmaster at Fort Wayne, which would require all of his time; that Moynihan agreed to perform the work for their company theretofore performed by both of them, and, in consideration therefor, appellee agreed to pay said Moynihan a sum equal to one-half of his salary as postmaster.
The demurrer admits the facts alleged in the answer to be true. We do not think that counsel
The cause is reversed, with directions to the court below to overrule appellee’s demurrer to the answer of set-off, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 113 N.' E. 734. Assignment of unearned salary of public officers, validity, notes 5 L. R. A. (N.S.)567; 9 Cye 495.