74 Ind. App. 286 | Ind. Ct. App. | 1919
This action was tried on appellee’s amended complaint. The substance of so much of the complaint as is essential to an understanding of the questions presented by this appeal is as follows:
Appellant moved the court to require appellee to make
Appellant moved the court to strike from the complaint the words “and other considerations not herein sued upon,” for the reason that said words are surplusage and tend to confuse the issues.
Each motion was overruled, and thereupon appellant filed answer in general denial.
Appellant requested the court to submit to the jury seventy-seven interrogatories, seven of which the court refused to submit. When all the evidence had been introduced, appellant moved the court to give the jury a peremptory instruction to return a verdict in its favor, which motion was overruled. Verdict for appellee in the sum of $689. Appellant moved for judgment in its favor on the answers to the interrogatories notwithstanding the verdict, which motion was overruled. Judgment on the verdict. Motion for new trial overruled.
The following errors are assigned: The court erred in overruling (1) the motion to require the appellee to make his amended complaint more specific; (2) the motion to strike out part of the amended complaint; (3) the motion for judgment on the answers to the interrogatories notwithstanding the verdict; (4) the motion for a new trial.
Counsel for appellant say: “If appellee had any special contract with appellant it was to the effect that in consideration of a grant by him of a license to appellant to manufacture and sell his semicollapsible baby carriage, and his labor in perfecting the same, appellant agreed to pay him $125.00 per month, together with a royalty on each carriage made, and to provide capital to push its manufacture. * * * The facts being so, appellee sued upon the contract but did not plead it truly, did not plead all of it, left out all but the part whereby for his labor he was to receive $125.00 a month.”
That statement discloses that the real cause of appellants’ discomfiture’ is the fact that Ivey has split his cause of action. Instead of suing for both wages and royalty, he has sued for wages only. By so doing he has taken upon himself the risk of having to meet a plea of former adjudication in any future action for the recovery of royalties. Van Fleet, Former Adjudication ch. V. If he should institute such an action, appellant will then have its opportunity properly to present the contention it is improperly presenting now.
In view of the conclusion we have reached, we would not be justified in discussing the instructions in detail. They are full and fair, and we cannot refrain from saying that for clearness of thought and accuracy of expression they are commendable.
Judgment affirmed.