American Car & Foundry Co. v. Smock

91 N.E. 749, 48 Ind. App. 359, 1910 Ind. App. LEXIS 32

• Court: Indiana Court of Appeals
• Decided: May 13, 1910
• Docket: No. 6,864
• Status: Published

Opinions

Roby, J.

1. Appellant is a corporation owning and operating a manufacturing establishment at Indianapolis. Appellee was employed by it as a carpenter, his work be ing connected with the building of cars. His hand was injured on April 2, 1906, while in appellant’s service. He subsequently made a claim against the company on account of such injury, and thereafter executed an instrument in terms as follows:

“Whereas, on or about April 2, 1906, an accident occurred resulting in bodily injury to W. Albert Smock, of Indianapolis, Indiana: whereas-, said W. Albert Smock has made a claim on the American Car and Foundry Company for money compensation for such injury, asserting that said American Car and Foundry Company is legally liable for said accident and injury, which said legal liability said American Car and Foundry Company expressly denies: Now therefore, I, said W. Albert Smock, in full accord and satisfaction of such disputed claim, do hereby acknowledge the receipt of the sum of $350, to me in hand paid by said American Car and Foundry Company, and in consideration thereof, I, said W. Albert Smock, do hereby remise, release and forever discharge the said American Car and Foundry Company, its successors and assigns, from any and all actions, causes of action, claims and demands, for, upon, or by reason of any damage, loss, injury or suffering which heretofore has been, or which hereafter may be, sustained by me, said W. Albert Smock, in consequence of such accident and injury. In witness whereof I have hereunto set my hand and seal this 5th day of July, 1906.

W. A. Smock.

Signed, sealed and delivered in the presence of L. L. Asham, attorney for W. A. Smock.

Burr J. Scott.”

It is averred in the complaint, with a wealth of detail, that, in addition to the payment of the sum specified therein, appellant agreed to take appellee into its employ at $15 a week as soon as he was able to work, and keep him in its employ during the remainder of his life. The action is to recover for the breach of this contract. The issue upon which the case was tried was formed by a general denial. There was a verdict for appellee for $5,000, and judgment accordingly.

Appellant’s position is that the consideration stated in the instrument heretofore set out is in terms contractual, thereby precluding proof of any other or different consideration. The holding upon this proposition must be against appellant. The instrument contains no promise or engagement on its part making the consideration contractual. Indianapolis Union R. Co. v. Houlihan (1901), 157 Ind. 494, 54 L. R. A. 787.

The consideration stated is by way of recital, and parol evidence is therefore admissible to show the true consideration. Stewart v. Chicago, etc., R. Co. (1895), 141 Ind. 55, 59; Pickett v. Green (1889), 120 Ind. 584, 588; Kentucky, etc., Cement Co. v. Cleveland (1892), 4 Ind. App. 171.

2. 3. 4.

5. The facts are similar to those involved in the case of Pennsylvania Co. v. Dolan (1893), 6 Ind. App. 109, 51 Am. St. 289, which ease supports the conclusion here reached. The determination of this question is practically a determination of the appeal. The evidence supports the finding, which goes with the general verdict, in accordance with the averments of the complaint, that appellee released his claim against appellant, in consideration of the payment of $350 and employment during the remainder of his life; and however much controversy there may have been in the trial court as to such fact, it is, at this time, to be taken as an established fact in the case. Appellant has accepted and holds the release so procured. "A man who has his option whether he will affirm a particular act or contract, must elect either to affirm or disaffirm it altogether; he cannot adopt that part which is for his own benefit and reject the rest. One cannot blow hot and cold.” Herman, Estoppel §1038. If a party having the right to repudiate or affirm a transaction affirm it he cannot afterward resort to his right of repudiation. That appellant cannot adopt the contract as its own, to the extent that the terms thereof are beneficial, and repudiate the obligation to pay the stipulated consideration, is "entirely too inconsistent with reason to leave much room for dispute.” The persons who acted for appellant in the transaction, were the general superintendent of its Indianapolis plant and the agent of a liability insurance company. It is, so far as the point under consideration is concerned, immaterial whether either had actual authority to do so.

6. A party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions; and where one has an election between several inconsistent courses of action, he will be confined to that which he first adopts. Strosser v. City of Fort Wayne (1885), 100 Ind. 443, 452; Ney v. Swinney (1871), 36 Ind. 454; Peters v. Bain (1890), 133 U. S. 670, 33 L. Ed. 696, 10 Sup. Ct. 354; Stuart v. Hayden (1898), 169 U. S. 1, 42 L. Ed. 639, 18 Sup. Ct. 274; Daniels v. Tearney (1880), 102 U. S. 415, 26 L. Ed. 187.

7. When appellee brought this action, appellant was called on to answer. If the contract by which the release had been secured was not its contract, that was the time to repudiate it. It was then put to an election. Robb v. Voss (1894), 155 U. S. 3, 42, 39 L. Ed. 52, 15 Sup. Ct. 4. It did not repudiate the contract, but, holding the release thereby secured, it entered into a litigation to determine what consideration appellee was by its terms to have. What that consideration was, became matter of proof. The trial court has settled the issue according to evidence, and appellant must conform to the terms of the contract as it was made, and pay to the appellee the consideration for which he released his claim. Bigelow, Estoppel (5th ed.) 717. The maxim, “He is not to be heard who alleges things contradictory to each other,” applies, and lack of authority by appellant’s general superintendent cannot be alleged against the fact that it holds the value thereby secured.

The question is not one of ratification by a principal, but of estoppel by election. Strosser v. City of Fort Wayne, supra.

In view of this conclusion, it is not necessary to discuss various questions that have been mooted. The amount of recovery is not challenged. The judgment is affirmed.

Rabb, P. J., dissents.