Independent Five & Ten Cent Stores v. Earles , 57 Ind. App. 241 ( 1914 )

Caldwell, J.

Appellant was the owner and proprietor of a number of stores, including one located at South Bend, all of which were under the supervision of appellant’s New York office. Appellee brought this action to recover compensation for his services as manager of the South Bend store, from April 1, 1909, to February 7, 1911. The first, second and fourth paragraphs of complaint declare on a written contract. The third paragraph is based on the quantum meruit. By the first and fourth paragraphs, appellee seeks recovery for 1910; by the second, for 1909, after April 1, and by the third paragraph for the entire period from April 1, 1909, to February 7, 1911. Said written contract is to the effect that thereby appellant employed appellee as manager of the South Bend enterprise, for the term of one year, commencing January 1, 1910, the measure of his compensation to be twenty per cent of the net profits of said store, guaranteed by appellant not to be less than $1,200 per year, payable at the close of the fiscal year, of which appellant was authorized to draw $18 per week as living expenses. Appellant answered each paragraph of complaint by general denial and plea of payment. In addition, appellant, in answer to the third paragraph, set up the written contract, with appropriate averments, and alleged also that appellee’s share of the net profits for the entire period, measured by said twenty per cent, amounted to $1,556.34; that he had been paid $936, and that there was due him $620.34 and no more.

A trial by jury resulted in a general verdict for appellee, returned on December 19, 1911, in the sum of $1,262.50, for which judgment was entered. The questions presented arise under appellant’s motion for a new trial. It is urged that certain items not shown by the evidence, were evidently accepted by the jury in appellee’s favor, while others tending to reduce appellee’s claim were apparently rejected by the jury, although proven by uncontradicted evidence, and that as a consequence, the amount of the verdict and judgment is too large.

1. 2. 3. The real controversy then is respecting the recovery for services performed in 1910. ’It is conceded that for that

It is conceded that appellee had been fully paid for his services performed in the year 1909. It is conceded also that for services performed in the year 1911, appellee is entitled to recover on the quantum meruit, and that the evidence showed the value of his services performed in said year up to February 7, when he terminated his employment, to be $50 per week, or a total of approximately $275. year, the ivritten contract controls. The parties agree that for said year the net profits of the store are obtained by deducting the total debits from the total credits. There was evidence that the total credits for the year amounted to $85,564.93 and the total debits to $72,406.70, and the consequent net profits to $13,158.23. Appellant contends, however, that certain discounts in the sum of $979.11, to which appellant would have been entitled had it made payment within certain times for goods purchased by it, enter into the total credits, but that the evidence failed to show that payment was so made, or that the discounts were so received. Appellant is correct in such contention. Appellant argues also that in addition to a certain specified rental for the storeroom occupied by it at South Bend, the uncontradicted evidence showed that by the rental contract, it was required to pay and did pay a previous tenant a bonus of $3,000 for a six-year lease, and that $500 of said sum should be charged as expense as against the year 1910, and that this sum is not included in the total debit for 1910. Appellant is correct also in this contention. The evidence showed without contradiction that appellant maintained at New York an office and wareroom, the whole business transacted in which, pertained to the management of the chain of stores. Each of the stores reported periodically to the office, and the bookkeeping for the most part was performed there. Requisitions for goods were made on the office, and from it goods were ordered or distributed to the various stores. Connected with the office was a general manager of all the stores, and a purchasing agent who attended to the purchasing of the goods so distributed. Appellant contends that the expense of maintaining the central office should be apportioned among all the stores. At the time when appellee so entered appellant’s employ, and when he made the contract, he was fully informed respecting the manner in which the business was conducted. We agree with appellant that the expenses should be so apportioned. On the assumption that they should be so apportioned, the parties agree that there should be assigned to the South Bend store such a percentage of the total expense of said office as the sales of the store are of the sales of the entire chain of stores for the year 1910. There was evidence that the total expense of conducting the New York office for the year amounted to $25,799.19. It is conceded that certain interest charges included in the sum, and amounting to $803.57 were properly excluded by the trial court. The evidence showed that certain commission charges in the respective sums of $491.80, $724.50 and $297.24 were included in the total expense, but the evidence is not clear that the commissions were paid on account of business transacted in 1910. It is conceded also that certain profits in the sum of $4,488.89 were realized by the New York office for the year, and that the profits were not taken into account in estimating the business of the year. Appellee contends that the commission charges and the profits should be excluded from the total expense. Appellant contends, however, that the item of profits should not be deducted, for the reason that in taking the account of the New York office, nothing was allowed for depreciation in the value of the fixtures of the various stores. Considering the situation as a whole, there was evidence from which the jury would have been warranted in excluding the commission charges, and also in deducting the profits in arriving at the sum total of the New York office expenses, and to the extent that it is necessary in order that the verdict may be sustained, we are bound to assume that it did so. Restating the New York expense account, as herein indicated, its total is $18,993.19. The total sales of the chain of stores for 1910 were $614,266.44. The total sales of the South Bend store amounted to $69,067.82. Under the rule above announced, $2,135.57 of the New York office expense must be assigned to the South Bend store. Restating the total credits and debits of the store for 1910, as herein indicated, the total of the former is $84,585.82 and of the latter $75,042.27, the net profits being $9,543.55. Appellee’s compensation for said year, under said contract, is measured by twenty per cent of said amount, or $1,908.71. There was evidence then from which the jury might have so fixed appellee’s compensation for 1910. Appellee for said year was advanced at the rate of $18 per week, or a total of $938.57, leaving a balance due for 1910 of $970.14. It is conceded that there was due him for services performed in 1911, less payments made, the sum of $185. The extreme amount due him, under the evidence, exclusive of interest, is $1,155.14. Assuming that he should be allowed interest from the commencement of the action, the verdict should have been not exceeding $1,213.85. Being for $1,262.50, it is excessive by $48.65.

4. 5. 6. The question of whether appellee was entitled to recover interest is presented by a certain instruction given by the court, wherein the jury was charged in substance to add interest to any amount due the appellee at the rate of six per cent per annum from the time said amount was due, providing the jury should find there had been long and unreasonable delay in the payment thereof. Abstractly considered, the instruction is correct. Marsteller v. Crapp (1878), 62 Ind. 359. Against that instruction it is urged that there was no evidence of long or unreasonable delay in making payment. In determining what constitutes unreasonable and vexatious delay in the payment of a debt each case must necessarily depend to some extent upon its own circumstances. 22 Cyc. 1499. Ordinarily, therefore, the question of whether there has been such unreasonable delay, in payment is one of fact for the jury. Rogers v. West (1857), 9 Ind. 400. There was evidence that appellee made frequent requests for a statement from the New York office of the business transacted in 1910, to be used as a basis of estimating the net profits, and evidence also that the statement was not furnished. In addition there was enough in the testimony of appellant’s local cashier to justify the jury in believing that on one occasion shortly before the action was commenced, when appellee requested appellant’s general manager to furnish such a statement, such general manager denied that appellant was indebted to appellee. The evidence warranted the giving of such instruction.

7. Further objection is made to the instruction to the effect that appellee’s claim for services performed in 1911, being measured by the quantum meruit was unliquidated, and the argument is made that interest is not recoverable upon, unliquidated debts. The fact that

the action was in part based on the quantum meruit is not sufficient to exclude the right to recover interest. New York, etc., R. Co. v. Roper (1911), 176 Ind. 497, 96 N. E. 468, 36 L. R. A. (N. S.) 952; Fell v. Union Pac. R. Co. (1907), 28 L. R. A. (N. S.) 1, note.

The action of the court respecting certain other instructions is criticized, but in our judgment, there was no substantial error in the giving or refusing of said instructions. In our opinion, the ends of justice will be most nearly accomplished by treating the claim sued on as due at the commencement of the action, and allowing appellee interest on the sum, which, under the view of the evidence most favorable to him, was at that time due him, and by permitting him at his election to remit from the sum the excess as hereinbefore indicated.

It is, therefore, ordered that if within twenty days, appellee shall file in this court a remittitur in the sum of $48.65, to be effective as of the date of the judgment below, the judgment will be affirmed for the residue, in the sum of $1,213.85; otherwise, the judgment will be reversed, with instructions to sustain the motion for a new trial; in either ease, costs against the appellee.

Pee Curiam. — Since the decision of this ease by this court, and within the time fixed in the opinion handed down November 19, 1914, conditionally affirming the judgment of the lower court, it has been made to appear to the satisfaction of this court that the condition on which said judgment was to be affirmed, to wit., that appellee should file in this court a remittitur in the sum of $48.65, to be effective as of the date of the judgment below, has been fully complied with. It is, therefore, ordered that the mandate heretofore made and entered by this court in said cause be, and the same is hereby modified in that the judgment of the court below in the sum of $1,213.85 is now unconditionally affirmed, with the costs against appellee.

Note. — Reported in 106 N. E. 730. As to Quantum meruit under special contracts, see 19 Am. Dec. 272. See, also, under (1, 2) 31 Cyc. 1521; Agency 2 C. J. §446; (3) 3 Cyc. 313; (4) 22 Cyc. 1498; (5) 22 Cyc. 1579; (6) 22 Cyc. 1581; (7) 40 Cyc. 2851.