6 Ind. App. 109 | Ind. Ct. App. | 1892
Tlie first error of which the appellant complains is the overruling of its demurrer to the appellee’s complaint, which, with the caption and formal parts omitted, is as follows: “ The plaintiff James Dolan complains of the defendant, the Pennsylvania Company, and for cause of action says that the defendant company was, on the days and times of the grievances hereinafter mentioned, a railroad corporation duly organized and existing under the laws of the State of Indiana, owning, using and operating a line of railroad known as the Jeffersonville, Madison and Indianapolis Railroad, together with its locomotives, cars, switches, side-tracks and other appurtenances
We think it readily appears from the foregoing complaint that the gravamen of the action is not the personal injury therein set out, but the breach of the contract pleaded. Kentucky, etc., Cement Co. v. Cleveland, 4 Ind. App. 171, 30 N. E. Rep. 802.
The liability of appellant for the injury is acknowledged by the agreement to compensate the appellee for the same. The question with which we are concerned, therefore, is not one of tort, hut of pure contract. The appellee was injured by the appellant’s negligence. The parties met and agreed to settle the controversy arising out of such injury, the appellant agreeing to pay the appellee in cash one hundred dollars, and to give him steady and permanent employment at a compensation equal to that he was receiving from the company prior to the sustaining of the injury. In consideration of the premises, the appellee agreed to execute to the appellant a written release, discharging the Tatter from all liability arising out of the personal injury sustained by the appellee, for which the appellant was liable to him.
There is no claim that the release was procured by fraud, nor can there be any question as to the sufficiency of the
The release was in writing. It is alleged that the instrument is in possession of the appellant, hut it is not shown that it, or a copy thereof, had been demanded of the latter, and refused. It seems to have been the view of the pleader that it was necessary to make the release an exhibit. It is insisted on behalf of the appellant that, in order to make the excuse for not filing such exhibit valid, it should have been averred that the original or a copy of the instrument had been demanded of the appellant and refused. It is proper to state here that we do not regard the complaint as declaring upon a written instrument. The reasons for this must be obvious. In the first place the rule is well settled that where the contract declared upon is not all in writing, it is regarded as a parol contract. Louisville, etc., R. W. Co. v. Reynolds, 118 Ind. 170. But, aside from this, the action is not upon the release, but upon the promise of the appellant to do certain things for which the release was given, and of which it formed the consideration. We take it that if A. conveys to B. by deed a tract of land, for which B. agrees to pay A. a sum of money,'in an action for the purchase price the deed is not the foundation of the suit, and need not be made an exhibit of the complaint. The agreement to pay is the foundation of such action, and whether or not notes or other writings had been executed for such purchase money, the complaint is in no sense based upon the deed. The pleading of the instrument first occurs generally in the answer or plea of the defendant, unless the action is brought to set aside the release, and if the plaintiff desires to controvert the release he must do so in his reply. 2 Es-tee’s Pleading and Pr., 735, 736.
It was not necessary, therefore, to file the release, or a copy thereof, with the complaint as an exhibit.
The appellant’s counsel suggests that, as the company is a quasi public servant, it would be against public policy to hold that the corporation could, by this kind of an agreement, “tie its hands.” We do not so regard the matter. The rights of the public could in no manner be impaired or made to suffer by holding the appellant to its contract. It appeal’s from the complaint that the appellee had been taken back into the employment of the company, and that he had performed his work satisfactorily and was discharged without cause. These facts are admitted by the demurrer. If the appellee, for any reason, was not fully able to do such work as the company might be in a position to give him, and ready and willing to do the same, this would be matter of defense for the answer.
The further contention of appellant’s counsel is that the alleged parol agreement lacks the element of mutuality. He argues that in every contract of hiring and service .there must be a twofold obligation — the one on, the part of the employer to hire and the other on the part of the
These propositions are doubtless correct as abstract statements of law, and whatever force they might have when applied to an ordinary case of hire, they can have no application where the consideration for the employment is paid, partially at least, as it was here, in advance. Suppose that, instead of the release executed by the appellee, he had paid the appellant five hundred dollars in cash, in consideration of which the latter had agreed to employ the former as a flagman in its yards, during his life, at the rate of two dollars per day. Could it be held that the want of mutuality would entitle the appellant to keep the five hundred dollars, and after a few months of employment and without any fault on his part, discharge him? We think not. There is no want of mutuality in such a case. The appellee has parted with value, and the appellant owes him a reciprocal obligation, and that is to furnish him work at stated wages to enable him to make a living, or partly so. There is no difference in principle between the case supposed and the one in hand. Here the appellee has relinquished a claim against the appellant that had a certain value. Ho has placed it beyond his power to recover upon that claim, and the appellant has received a corresponding benefit. The appellant, recognizing his obligation in the premises, gives the appellee employment for a short time, and then, without the latter’s fault, and without any just cause, and in violation of the terms of its agreement, discharges him and leaves him in his crippled condition to buffet with the world as. best he can. This is, in our estimation, a flagrant breach of contract, and courts exist to a poor purpose if they can give no redress for such a wrong.
Having determined that the contract as to time is sufficiently definite, it follows, we think, that the rule must be applied that where a sexwant who has been hired for a definite pei’iod has been dischaiged by the master, before the expiration of such tex-m, lie has his remedy in an action for daxnages for the breach of the contx’act. Richardson v. Eagle MachineWorks, 78 Ind. 422; 14 Am. and Eng. Encyc. of Law, 797; 2 Sutherland on Damages, 471; Wood on Master and Servant, 194; 1 Addison on Contracts (8 ed.), top p. 450, et seq.; 2 Sedgwick on Damages, sections 607, 664, et seq.
Some question might well be made upon the statute of fraud, which provides that no action can be maintained oxi a contract not in writing, that is not to be perfoimied within one year from the making thereof. Section 4904, H. S. 1881, subd. 5.
It has, however, been frequently decided that where a contract is personal in its chax’acter, as a contract for personal sexwiees, which might tenninate with the death of the party making it, though the conti’act be for an indefinite period or a term of years, it is not within the statute of frauds. Hill v. Jamison, 16 Ind. 125; Indiana, etc., R. W. Co. v. Scearce, 23 Ind. 223; Straughan v. Indianapolis, etc., R. R. Co., 38 Ind. 185; Marley v. Noblett, 42 Ind. 85.
The case of Hobbs v. Brush Electric Light Co., 75 Mich. 550, was a suit for personal injuries inflicted by the defendant’s alleged negligence. It appeared on the trial that the plaintiff had signed a x-elease executed in good faith, discharging the defendant from all liability, because the superintendent said he would give him steady employment. It was claimed on the pai’t of the plaintiff on appeal that there was a total want of consideration, for the reason that no debt or obligation was ci’eated against the plaintiff, which he was bound in law to pay, the
We are of the opinion that the complaint in the case before us states a good cause of action. This disposes of the first and second assignments, and we proceed to the next.
The third specification of error questions the correctness of the ruling in sustaining a demurrer to the second paragraph of the answer. This pleading sets out the written release and seeks to raise the point that the parol agreement to employ is merged in the written release. The paragraph is as follows :
“ For a further and second paragraph of answer, the defendant says that said release stipulates and provides that-said sum of one hundred dollars is the final and full consideration for all claims or demands whatsoever against the defendant for his alleged injuries. All as shown by copy of the release, which is herewith filed and made a part hereof.”
Then follows a copy of the release, which is as follows:
“ Know all men by these presents, that I, for and in consideration of one hundred dollars, to me paid by the Pennsylvania Company, the receipt whereof is hereby acknowledged, do release and discharge the Pennsylvania Company from the payment -of any further sum or sums of money, for or on account of the claim I have or may have against said company, as above stated. And I hereby agree that this release shall operate as a bar to any suit at law, or otherwise, which I, or any of my heirs, executors, administrators or personal representatives may or can maintain by reason of claim as aforesaid. Witness my hand,” etc.
The exception to this rule is where the parties have undertaken to specify the consideration in the writing, and where such consideration is contractual in its nature. In that case parol evidence to vary the terms of the agreement will not be admitted. Reisterer v. Carpenter, 124 Ind. 30; Pickett v. Green, supra, and cases cited; Conant v. National, etc., Bank of Terre Haute, 121 Ind. 323.
In the case at bar, the parol agreement to employ the appellee at a certain compensation was purely collateral to the release. If the parties had undertaken to put the terms of the consideration, so far as it relates to the employment, in the written release, perhaps they would be concluded by its recitals, inasmuch as such portion of the consideration is contractual in its character. In that event the instrument would be more than a release, however; it would embrace, also, the contract for future employment, and, in an action for the breach of such contract, the instrument would doubtless constitute the foundation.
But, as the writing is incomplete and does not contain a stipulation for a contractual consideration, nor an enforceable contract, extrinsic facts may be averred and proved,
The demurrer to the answer was properly sustained.
The overruling of the motion for a new trial is the last error assigned. One of the reasons assigned in the motion was the giving of instruction No. 6, and another the refusal to give the appellant’s 11th instruction.
Ve give helow, from the brief of appellant’s counsel, the substance of the instruction given and the objections urged against its correctness, together with his reasons for thinking that his own instruction should have been given instead. He says:
“ The court’s 6th instruction relates to the measure of damages, and, after stating that if the jury find so and so (omitting the necessary element of mutuality and fixed duration of contract), the plaintiff will be entitled to damages, and after warning the jury that there can be no recovery for appellee’s permanent injuries, declares that the ‘ action is to recover damages for a breach of contract, and the recovery must be limited to actual pecuniary loss sustained by plaintiff on account of such breach since his discharge from defendant’s service, and what will probably and reasonably be sustained by him hereafter. In this connection the jury may consider the plaintiff’s age and physical condition at the time of his discharge, and then, presuming that, with habits of industry and sobriety, he makes all proper and reasonable efforts to help himself, how far will he fall short of being able to earn, in some capacity, wages equivalent to the wages he was getting at the time of his injury, and then the amount assessed must be solely for the purpose of compensating plaintiff for the loss which will reasonably and probably be sustained by him on account of such breach of contract.’
“ The instruction not only gives damages ‘ since the injury,’ but also future, for life damages.
“For the past, there was a tangible basis for ascertaining*122 or reasonably approximating actual damages because of inability to get employment elsewhere, and of his ability, habits, etc. For the future there is no such basis, all is mere speculation, guess work. The instruction proceeds upon the theory that the cause of claim is on an entirety, and can not, therefore, be divided. On the contrary, it is submitted that after the close of each day lost he could have sued for that day. Appellant’s refused instruction 11, limiting the recovery to the ‘present time,’ is liberally correct, it is submitted.
“The instruction invites the presumption by the jury that appellee, with habits of sobriety and industry, would make all proper and reasonable efforts to help himself, and this, too, during life; and this, too, without success.”
We have given the question raised by the learned counsel a careful consideration, and have come to the conclusion that the position taken by him is not tenable. A brief review of the authorities will supply the reason for this conclusion. Richardson v. Eagle Machine Works, supra, was an action by a servant against his master, who had hired the servant for a definite period and wrongfully discharged him before the expiration of the same. In the course of the opinion the court, by Xiblack, J., makes use of the following language:
“ Considerable uncertainty existed at one time as to the proper remedy upon the breach of a simple contract for labor for a specified time, or in some specific undertaking. But we think it may be safely inferred from the recently decided cases, that, where a servant has been wrongfully discharged before the conclusion of his term, he may, in addition to his right to recover for wages already earned, treat the contract of hiring as continuing on his part, and sue for damages for the breach by the master, or he may rescind the contract and recover the value of his services actually rendered.
“ It was formerly held, that where, in such a ease, the ser*123 vant treated the contract as continuing in force, he might recover what was denominated constructive wages for the remainder of his term; but what might then have been denominated constructive wages is now included under the general head of damages resulting from the master’s breach of the contract of employment. Ricks v. Yates, Admr., 5 Ind. 115 ; Moody v. Leverich, 4 Daly, 401; Gandell v. Pontigny, 4 Campbell, 374.
“ The plaintiff having brought and prosecuted to final judgment one action for the defendant’s breach of the contract sued on in this case, * * * full damages might have been demanded and recovered in the first action. Crosby v. Jeroloman, 37 Ind. 264.”
The case of Hinchcliffe v. Koontz, 121 Ind. 422, is a more recent one. Koontz sued the appellants to recover damages for the alleged breach of a contract, by which the appellants had hired Koontz to serve as their foreman in a brick-yard for one year, at a stated salary. It was there held, Mitchell, J., speaking for the court, that the measure of damages was, prima facie, the amount stipulated, subject to such reduction as might be made to appear proper, on the part of the defendant, by showing that the plaintiff either procured, or could, with reasonable efforts, have procured, other employment, or that he occupied his time at his own or other remunerative business.
Mr. Sedgwick, after stating that the authorities are in conflict upon this subject, declares the rule, as held by the recent decisions, to be that the plaintiff must recover his entire damages in one action, “ and that the measure of damages is, therefore, the amount of wages due at the time of the trial, together with compensation for the future benefit the plaintiff woirld probably have realized under the contract, with the proper deductions.” He further says : “ It is the plaintiff’s duty to use reasonable efforts to avoid loss by securing employment elsewhere. The
Other authorities might be cited, hut we need not further pursue the inquiry.
’ The appellee testified upon the trial that the time for which the appellant had employed him, or agreed to retain him in its employment, was during his life. Counsel thinks, or intimates, that this does not sustain the averment of the complaint that the employment was to be “ steady and permanent,” and asks if this is not a fatal variance. "We do not so regard it. Ve think the evidence tends to prove the averments with reference to the time of employment.
Some further objection is made to instructions given and refused, hut, without setting them out, it will he sufficient to state that the rulings* upon these instructions is in consonance with our views of the law as declared in other portions of this opinion.
Judgment affirmed.