Old Reliable Paint Co. v. Storey

Batman, J. This is an action by appellee against appellant to recover an alleged indebtedness for services performed. The complaint is in two paragraphs, each based on an express parol contract. The answer thereto consists of four’paragraphs. The first relates to a letter made a part of the second paragraph, and is in the nature of a non est factum. The second is a general denial. The third alleges a compromise of the amount claimed by appellant to be due for the year 1917, and the conversion by appellee of property be *205 longing to appellant of a value in excess of any amount due him for services subsequently rendered. The fourth is a plea of payment and satisfaction. Appellant also filed a fifth paragraph, which is in the nature of a counterclaim. A general denial was filed to all of said paragraphs except the second. The cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal. Appellant, in support of its contention that the verdict is not sustained by sufficient evidence, asserts that the services for which appellee seeks to recover, were rendered under three separate and distinct contracts, one being for each of the years 1917, 1918 and 1919, as disclosed by the evidence, and hence there can be no recovery, as the complaint is based on a single contract. We cannot concur in this contention. Each paragraph of the complaint is based on a single contract, as appellant claims, but covers services extending over a continuous period, beginning January 15, 1917, and ending September 15, 1919. The evidence is sufficient to sustain the facts alleged in that regard, as the settlement of disputes with reference to the -terms of the contract, or any modification thereof, in minor particulars not affecting the basis of appellee’s compensation, would not break the continuity of appellee’s service thereunder. It is also contended that appellee is not entitled to recover for his labor, as such, in making or attempting to make sales under his contract of employment, as his compensation was on a commission basis, and hence the risk of the time employed and labor expended was his; and further that there could be no recovery for services rendered in 1919, because *206 appellee failed to remain in appellant’s employment for that entire year. It suffices to say, in answer to the first contention stated, that appellee has not sought to recover for any labor performed or time expended which entered into an attempt to perform the services required of him under his commission contract; and, as to the latter contention, it may be said that the contract, being indefinite as to the term of service, did not place an obligation on appellee to complete the full year stated, under the circumstances which the evidence tends to establish. Appellant contends that the amount of recovery assessed is too large. This cause for a new trial is only available when the amount of recovery assessed is greater than is warranted by any evidence introduced. Helms v. Appleton (1908), 43 Ind. App. 482; Klitzke v. Smith (1915), 59 Ind. App. 461. The record discloses some evidence to sustain the amount of recovery assessed, as well as every other element essential to appellees' cause of action, which is sufficient on appeal. Appellant has assigned as one of its reasons for a new trial, that the jury erred in the assessment of the amount of recovery on its counterclaim, the amount assessed thereon being too small, and has stated a proposition thereon in its brief. In view of the fact that there was no assessment of recovery in any amount in favor of appellant on its counterclaim, the reason for a new trial stated above is not a ground therefor, as we are not permitted to recognize any not specifically named in § 610 Burns 1926, § 585 Burns 1914, § 559 R. S. 1881. Over v. Dehne (1905), 38 Ind. App. 427; Colley v. Kelley (1911), 52 Ind. App. 687; Wilson v. Sentman (1919), 74 Ind. App. 112. If appellant had in mind that the jury, in determining the amount of its verdict in favor of appellee, failed to give it proper *207 credit for the amounts to which it was properly entitled under the evidence submitted on his counterclaim, such question properly arises under the reason assigned, viz.: that the assessment of the amount of recovery on appellee's complaint is too large, which we have heretofore considered. Complaint is made of the action of the court in sustaining the objections of appellee to eighteen questions propounded to him by appellant on cross-examination. An examination of the record discloses that in a number of instances, any error so committed was rendered harmless by the answers of the witness to other questions covering substantially the same facts. Lillard v. State (1898), 151 Ind. 322. Other questions called for facts which were wholly irrelevant, or had such slight bearing on the issues involved, as to render the action of the court justifiable, or at least harmless. The extent of the cross-examination of appellee rested necessarily in the discretion of the trial court, in a very large measure, and no abuse thereof is shown. Therefore a reversal on that ground would not be warranted. Shields v. State (1897), 149 Ind. 395 ; Merchants Nat. Bank v. Nees (1915), 62 Ind. App. 290. For the reasons stated, we conclude there is no reversible error shown in the rulings of the court on the cross-examination of appellee. Appellant contends that the court erred in permitting appellee to testify that he never made any agreement fully compromising and settling all differences as to the latter’s commission for the year, 1917. In the trial court, it was urged as an objection to the admission of this evidence, in substance, that writings had been introduced showing a compromise and settlement, which are the best evidence of such fact, and binding upon the parties, in the absence of proof of fraud or mistake, given under a proper plea. We *208 assume that the writings to which appellant referred consists of a letter sent by it to appellee on February 18, 1918, which contains the following statement: “We are enclosing check for $71 which covers your commission for year 1917,” and a letter sent by appellee to appellant’s representative on February 19, 1918, which contains the following statement: “Yours of the 18th with check for my commission for last year received.” These letters are the best evidence of their contents, but the circumstances under which they were sent and received were proper subjects of inquiry, in order to determine their true import, as their significance would depend in some measure on whether there had been a compromise agreement. There is nothing in the issues or the evidence which would render parol proof of such circumstances incompetent, or require that it be preceded by evidence of fraud or mistake. There was no error in the ruling challenged. Appellant complains of the action of the court in refusing to permit it to prove that the stock in the various stores operated by it and the books kept in regard thereto balanced absolutely. Such proof would have been irrelevant to any issue involved on the trial, and the ruling of the court in excluding it was clearly right. Appellant asserts that the verdict of the jury is contrary to law, but has failed to show any sufficient reason for sustaining its motion for a new trial on that ground. No reversible error being presented by the record, the judgment is affirmed.