Cooban v. Bryant

Jtoisdictioh. (1, 2) Justice's court: Jurisdiction, of accounts. (3) Jurisdiction of appellate court depends on that of the justice. 1. In an action in justice’s court for an amount less than $200, alleged to he due for commissions on sales of twelve sewing machines effected by plaintiff as defendant’s agent, under a contract between them, it appeared that plaintiff had sold for defendant, under the same contract, a large number of such machines, and that payments were made by defendant to plaintiff from time to time, on account of such sales; but it did not appear that these payments were applied to extinguish any particular items of the account, or that there had been any settlement, or account stated, between the parties; and defendant claimed that certain deductions were to be made from plaintiff’s commissions on account of machines returned. Held, that the matters of difference between the parties in the action could not be'determined without considering the entire account on both sides; and, as that account was for a greater sum than $500, the justice had no jurisdiction. Tay. Stats., 1353, § 9. 2. Otherwise, if there had been any settlement of the accounts, and a balance struck; or if payments had been made, to apply on particular items or portions of the account, so as to extinguish them; or if it appeared in any manner that the commissions upon all machines sold except those mentioned in plaintiff’s bill of particulars, had been adjusted between the parties. 3. On appeal from the judgment of a J. P., the appellate court acquires no jurisdiction if the subject of the action was beyond the jurisdiction of the justice.

APPEAL from the County Court of Milwaukee County. Actions commenced in justice’s court. The complaint of Mrs. Cooban, in the first named action, alleges that on or about September 3, 1870, she and defendant made an agreement whereby she was to act as agent for defendant in selling the Howe sewing machine, in consideration whereof defendant agreed to pay her “ a commission of twenty per cent, on the gross amount of sales of the said Howe sewing machine made by the plaintiff, one-half of which was to be paid at the time of sale of the said machines, and the balance in one month from the time of said salethat plaintiff, pursuant to said agreement, sold machines as set fortl in her account annexed; and that defendant is indebted to her in the sum of $123.60, for commissions on said sales, etc. The account or bill of particulars annexed to the complaint, consists of a statement of sales of twelve machines, made by plaintiff between June 8 and July 6, 1871, showing the amount for which each machine was sold, and the amount claimed to be due plaintiff for commission on each sale. The answer alleges that by the agreement between the parties, the second moiety of plaintiff’s commissions was to become due “ when the second payment was made on each machine, by the purchaser, to the defendantand that “ whenever any machine sold by the plaintiff was returned by the purchaser to the defendant,” plaintiff was only to “receive one-fourth of the commission agreed upon as aforesaid.” It further alleges that in pursuance of said agreement, plaintiff sold machines as set forth in an account annexed to the answer; that the commissions on said sales amounted to $1,186.84; that defendant had paid plaintiff at sundry times between August 26, 1870, and August 7, 1871, $1,106.37, on account of said commissions, and was now indebted to plaintiff in the sum of $80.47, as the balance due on account of said commissions, which sum defendant brought into court, etc. The account annexed to the answer showed about eighty sales made by plaintiff from time to time, between August 26, 1870, and August 26, 1871, and credited plaintiff, at the date of each sale, with the whole amount of her commission on such sale; while it debited her with various sums as “cash on commission account,” under dates ranging from August 26, 1870, to July 14, 1871, and, under date of August 7, 1871, debited her with $14.18 as “ three-fourths commission charged back on M. Stolz’ machine, returned for nonpayment.” This account does not show any balance struck before August 26, 1871, when the balance in plaintiff’s favor is stated at $80.47. Two sales mentioned in plaintiff’s bill of particulars do not appear on defendant’s account: one made to a Mrs. James, June -8, 1871, on which the commission claimed is $16.60, and one made to a Mrs. Lilly, July 6,1871, on which the commission claimed is $13.00. On the trial, plaintiff testified to all the facts alleged in the complaint, and that she never agreed with defendant to refund three-fourths of the commissions on machines sold by her that were returned. On cross examination, she was asked to state how much cash she had received from defendant since April, 1871; but the question was ruled out. Defendant then insisted that the justice who tried the case had no jurisdiction of it, because the amount of the original account between the parties exceeded $500; and he offered to prove the averments of the answer in that behalf, and that there had never been any settlement of the account between the parties. The offer was rejected, and the objection overruled. Defendant testified to the contract of agency as stated in his answer, in respect to the time when the second moiety of commissions was to be paid, and in respect to the reduction of the commission to one-fourth where machines were returned. He also testified that a machine sold to M. Stolz by plaintiff, in June, 1871, and on which only $10 had been paid, was returned in August following, because the purchaser could not pay any more on it; and he introduced evidence tending to show that the machines sold to Mrs. James and Mrs. Lilly were not sold by plaintiff, and that the former had been returned, from inability of the purchaser to make further payments, only one dollar having been paid thereon. The other evidence was unimportant.* The pleadings in the second case were similar to those above described; and the questions raised bj the record of the trial substantially the same as in the former case, except that the amount claimed to be due the plaintiff was $76.10, while the whole amount of the commissions earned by said plaintiff under his contract of agency, as shown by the account annexed to the answer, was $560. In each case, the plaintiff had a verdict for the amount claimed in the complaint; a new trial was .denied; and defendant appealed from a judgment on the verdict. contended-that the action was clearly upon an account, and therefore governed by Tay. Stats., 1353, § 9; that even if the contract of agency was that plaintiff should. receive a commission of twenty per cent, on each machine sold, that merely determined the rate of compensation for her services, and the account was like that of a laborer against his employer, for whom he had labored for a year or inore at a stipulated price per day; that in such cases the laborer could not make up an account claiming that for certain days (specifying them by dates), he had never been paid where tbe account had never been settled for any portion of the time of employment (Ward v. Ingraham, 1 E. D. Smith, 538; Glackin v. Zeller, 52 Barb., 147; Qriffen v. Brown, 53 id., 428); and that the court therefore erred in rejecting the evidence offered by defendant to show the real extent and amount of the account between the parties. Nimmiclc v. Matthiessen, 32 Wis., 324; Van Patten v. Wilcox, id., 341. argued that the statement attached to the complaint, of all the machines sold under plaintiff’s contract of agency upon which unpaid commissions are claimed, concedes a settlement, of all other and previous transactions; that as defendant took issue upon this statement, without alleging that an examination of other or of all matters of account between the parties was necessary in order to ascertain the balance due (Barker v. Baxter, 1 Pin. Wis., 407), the pleading showed a settlement of all matters not included in the complaint, as valid and effectual as if made by express agreement; and that by the statute a justice has jurisdiction where th & plaintiff's account, proved to the justice’s satisfaction, does not exceed $500, and has been reduced to $200 by credits or setoffs. 2. But if a settlement is not conceded, still, “ whatever has been received or applied specifically as payment will be rejected, and the balance only will constitute an account within the statute.” Lamoure v. Caryl, 4 Denio, 370; Abernathy v. Abernathy, 2 Cow., 416; Maiteson v. Bloomfield, 10 Wend., 555. 3. A bill of particulars notifies the party of the specific demands made against him, and is considered and construed as an amplification of the pleading; and issue joined upon it alone limits the testimony to the items therein contained, and excludes proof of all other matters not so stated. 2 Wait’s Pr., 352 ; Bowman v. Earle, 3 Duer, 691; Chrysler v. James, 1 Hill, 214; Brown v. Williams, 4 Wend., 360, 368; Starkweather v. Kittle, 17 id., 20.