18 Ind. App. 474 | Ind. Ct. App. | 1897
Appellee sued appellant, which is a corporation, under an alleged contract of service, and recovered judgment for $62.81. The complaint is in three paragraphs. The first paragraph counts upon a verbal contract made directly with appellant on or about July 15,1894, whereby it was agreed that appellee should enter into its employ, in the capacity of mechanic and builder and maker of bicycles, until appellant should complete and commence to operate its factory; that appellee was to receive for his services $3.50 per day, and that after said factory should be in operation, he was to be paid $4.00 per day. The first paragraph of the complaint further avers that appellant was to furnish appellee steady and continuous employment until said factory should be put in operation; that he (appellee) entered into said employment, and was ready and willing to continue therein, but that appellant failed and refused to give him steady and continuous employment, but only permitted him to work for twenty-one days; that he was ready and willing to perform the labor for appellant as agreed upon, but that appellant, long before it completed its said factory, and began to operate the same, wrongfully discharged him, and refused to give him any work to do, to his damage, etc.
The second paragraph of complaint does not aver a contract directly with the appellant, but that the contract was made with Henry J. Adams and others, who represented to appellee that they were the owners of
The third paragraph is like the second in all substantial respects, except that it avers a ratification by appellant of the contract between appellee and Henry J. Adams and others, its promoters. The averment of ratification is as follows: “That afterwards, on the 18th day of July, 1894, and after the said defendant company had been incorporated, as aforesaid, the plaintiff and the defendant company ratified and confirmed the agreement made as aforesaid, and said plaintiff entered into the employment of said defendant under said agreement, and that defendant company began to construct and build its factory,” etc.
Appellant demurred to each paragraph of the complaint, which was overruled, and such ruling is one of the errors assigned here.
Appellant contends that neither paragraph is sufficient to withstand a demurrer, and we will consider the objections urged, in their order, as presented by the learned counsel.
It is insisted first, that each paragraph is fatally
In the second paragraph of complaint the term of the contract of employment, was, in the language of the complaint, “from and after July 18, 1894, until it (appellant) should complete and commence to operate its bicycle factory, then intended to be built in New Castle, Indiana.” It is further averred in this paragraph of the complaint that, “the defendant refused to provide plaintiff employment, although its said factory is not yet completed ready- to operate.”
In the third, the language used was, “that if he (appellee) would enter into the employment of the defendant as mechanic, builder, and maker of bicycles and patterns and models * * * * from and after July 18,1894, until it should complete and commence to operate its bicycle factory then intended to be built, * * * * *, the defendant would pay plaintiff for his services the price and wages of $3.00 per day, and that after such factory should be put in operation that he should be paid $4.00 per day for his services.”
It must be conceded that the contract was indefinite and uncertain as to the term of appellee’s employment, in this: (1) That no time is fixed in which appellant’s factory was to be completed, or when it was to commence operations. (2) That after said factory should commence operations, there is no averment as to the length of time he should remain in the service of appellant, or how long the factory was to be operated.
There is a clear distinction between indefinite and uncertain contracts of service and those where the terms of the contract are expressly fixed by the contract itself. In an action upon the latter class of contracts for a breach thereof for a wrongful discharge before the expiration of the time, there is a certain and definite criterion, from which the measure of damages can be ascertained; but in a contract, where the term of employment cannot be ascertained with reasonable certainity by the terms of the contract, we are not aware of any rule by which the measure of damages can be fixed. There is no averment in the complaint that appellant’s factory was to have been completed and ready for operation within a given and fixed time. We cannot look to the evidence to determine the sufficiency of a pleading, for we take the pleading as it is, and it must stand or fall, according to its own strength or weakness. The sufficiency of a pleading is a pure question of law, to be determined by the court. The court takes the pleading as it has been cast, the demurrer admits the truth of the facts stated, and the court declares as a matter of law, whether the facts stated constitute a cause of action or a ground of defense. The contract declared on in
The common law rule, as stated by Mr. Chitty, is as follows: “The principal rule as to the mode of stat
True, the statute does not use the words, “with certainty,” but that is its evident meaning. Measured by the statute a “person of common understanding,” or even one learned in the law, could not know the term, or duration of appellee’s employment, under the contract declared upon.
In 1 Lawson’s Rights and Remedies, section 260, the rule applicable here is stated as follows: “In the United States, on the contrary, a general and indefinite hiring is prima facie a hiring at will, though the servant is to be paid by the day, week, month, or year, as the case may be.” De Briar v. Minturn, 1 Cal. 450; Tatterson v. Mfg. Co., 106 Mass. 56; Franklin Mining Co. v. Harris, 24 Mich. 115; Haney v. Caldwell, 35 Ark. 156; Orr v. Ward, 73 Ill. 318; Kansas Pacific R. W. Co. v. Roberson, 3 Colo. 142.
In .Georgia it was held that a servant employed at will may be discharged at any time. Parks v. City of Atlanta, 76 Ga. 828.
The case of Baldwin v. Kansas City, etc., R. R. Co., 111 Ala. 515, 20 South. 349, is strongly in point here. In that case, appellee contracted with appellant to put in a switch and side-track at a sand-pit, owned by appellant, and agreed to haul sand from such pit for $8.00 per car load. The switch and track were put in as agreed, and sand was hauled under the agreement for three years, when the appellee notified the appellant that from a certain date the rate of freight would be increased to $12.00 per car. The Supreme Court of Alabama held that the contract being uncertain as to time, was determinable at the election of either party, and that an action would not lie for damages for the breach/
Christensen v. Pacific Coast Borax Co., 26 Ore. 302, 38 Pac. 127, is also in point. That case grew out of a .mining contract. The appellant agreed to timber the ground work, mine, clear, and sack the ore for $23:00 per ton. The appellee agreed to haul the timber to, and the ore from the mine, and not to deprive appellant of his contract. It was held that such agreement did not bind appellee to permit appellant to mine out all the ore in the mine, and to receive pay for the same, but that it was a simple contract of employment, for an indefinite time, determinable at appellee’s pleasure.
In the case at bar, appellee’s learned counsel have
From the complaint itself there is no data, or means stated, by which it could be determined when appellant would complete its factory, nor after its completion, how long it would operate it. The complaint does not state a cause of action, and the court erred in overruling appellant’s demurrer thereto.
Judgment reversed, with instructions to the court below to sustain the demurrer to the complaint.