#### Ellis, Appellant, *v.*Victor Electric Products, Inc., Appellee.

*171(No. 7090

Decided May 31, 1949.)

*Messrs. Scanlon <& Scanlon,*for appellant.

*Messrs. Dinsmore, Shohl, Sawyer & Dinsmore,*for appellee.

Ross, P. J.

The appeal upon questions of law here considered is from a judgment of the Court of Common Pleas of Hamilton County, rendered in favor of the defendant upon its motion for judgment on the pleadings and opening statement of counsel.

That courts should not be unduly precipitate in granting such motions is apparent from the cases in which such motions have been considered by courts of review. *Neckel*v. Fox, 110 Ohio St., 150, 152, 143 N. E., 389, in which it is stated, “This court is not disposed to give too rigid a construction to the terms employed in the statement by counsel for plaintiff.”

*172See, also, *Wainscott*v. *Young,*74 Ohio App., 463, 59 N. E. (2d), 609; 39 Ohio Jurisprudence, 885, Section 226.

Stripped of many matters irrelevant to the questions presented, the problem involves the construction of a contract which is definitely alleged and stated by plaintiff and denied by the defendant.

In both his petition and opening statement, the plaintiff claims the defendant promised and agreed that, if the plaintiff would take a reduction in his monthly salary of $200, the defendant would pay plaintiff (1) $650 per month, (2) pay plaintiff’s moving expenses from Pittsburgh, Pennsylvania, (3) give plaintiff an annual two weeks vacation with pay and (4) pay plaintiff a bonus *based on increased prod,notion, guaranteed to be substantially more*than the difference between his previous salary and that accepted, if production continued as it had for the two previous months.

The plaintiff claims he performed his contract and this is not seriously denied.

The defendant, according to statements of plaintiff, performed *part*of its contract. It paid plaintiff the $650 per month and the amount of vacation pay, after demand for same, and, as no claim is made for moving expenses, it may be presumed the defendant paid these also.

The defendant has refused to pay the plaintiff any extra compensation in any amount, although there is a definite allegation, which, if proved, would entitle plaintiff, without question, to *at least*the difference between $850 and the $650 temporarily accepted by plaintiff. When the promise to pay a “bonus” becomes a part of a contract of employment it is more than a mere gratuity. *Mabley & Carew Co.*v. *Borden,**173129 Ohio St., 375, 195 N. E., 697. See, also, 28 A. L. R., 332.

The holding in the *Mabley & Carew case*was in the face of a statement that the “bonus” was “purely voluntary and gratuitous.”

A great deal of confusion is created upon both sides; of this controversy by the use of terms irrelevant to* the issues presented.

However, regardless of plaintiff’s statement of his conception of the relief merited by the facts alleged, if he is entitled to relief on the facts alleged and stated, such relief must be extended by the courts. *Schaefer*v. *First National Bank of Findlay,*134 Ohio St., 511, 520, 18 N. E. (2d), 263, wherein it is stated:

> “When the plaintiff pleads all the facts the court should give him the relief he is entitled to, whether in equity or by declaratory judgment; even the prayer is not controlling. *Riddle & Parker*v. *Roll,*24 Ohio St., 572; *Tiffin Glass Co.*v. *Stoehr,*54 Ohio St., 157, 163, 43 N. E., 279; *State, ex rel. Masters,*v. Beamer, 109 Ohio St., 133, 151, 141 N. E., 851.”

See, also, *Triff, Admx.,*v. *National Bronze & Aluminum Foundry Co.,*135 Ohio St., 191, 20 N. E. (2d), 232, 121 A. L. R., 1131; *Cook*v. *Crider,*63 Ohio App., 12, 24 N. E. (2d), 966.

The facts alleged and stated by plaintiff show the existence of a contract. Statements as to quantum meruit and unjust enrichment, if irrelevant, may be ignored as surplusage. *Triff case, supra.*

The defendant, according to plaintiff’s allegations and statements, agreed to pay a bonus, that is, additional compensation to that paid monthly, based on increased production and guaranteed to be *substantially more*than his *previous*salary. In effect the contract was to pay compensation for services ren*174dered, in part monthly and the balance at the end of the year.

It is evident that the substantial increase over the accepted decrease in salary will have a direct relation to *increased*production. A mathematical ratio is thus presented involving the decrease in salary accepted by plaintiff, increased production, which is charged to be 600 per cent and a substantial payment. What will be the amount of damages for the breach of this contract will be a question for the jury, largely controlled by what, it determines the reasonable value of the services rendered to be, tailing into consideration the increased production accomplished by plaintiff.

The use of the word, “bonus,” in the contract is misleading, and, as has been pointed out, the “bonus” is not under the circumstances a mere voluntary gratuity.

The fact that the exact amount of compensation is left to future determination between the parties does not destroy the obligation to pay the reasonable value of the services, even if partial payment is made from time to time, when such services are rendered under such an agreement. Certainly, a contract merely to pay a substantial amount for services rendered can be enforced. Such amount would necessarily have a relation to the reasonable value of the services rendered. See 12 American Jurisprudence, 877 *et seq.,*Section 323 *et seq.*

The judgment is reversed and the cause remanded for further proceedings according to law.

*Judgment reversed and cause remanded.*

Ross, P. J., Hildebrant and Matthews, J.I., concur in the syllabus, opinion and judgment.