Gardner v. Avery Manufacturing Co.

Payment: Pleading. In an action to recover for services, where the answer was merely a general denial, defendant cannot complain of a failure to deduct from the recovery payments not admitted in the complaint.

Appeal from a judgment of the circuit court for Dodge county: James J. Dick, Circuit Judge. Action commenced in justice’s court to recover for services and expenses as traveling salesman, upon an express contract, as alleged in the complaint, to pay the plaintiff such sum as his services were reasonably worth, such sum as the defendant paid otlier salesmen, and such, sum as other corporations paid their salesmen, together with expenses. The answer was merely a £ eneral denial. On appeal trial was had before a referee, who found the contract to have been to pay plaintiff as much as he had received for .similar services from other employers, which sum was $15 per month; that the plaintiff worked under that arrangement from April 8th to May 20th, inclusive, and after May 20th to about June 17th he worked under an agreement to pay his expenses, and nothing for salary unless he made sales, of which none were made. As a result of this agreement, it was found that the plaintiff earned $107.51, and expended in excess of .expense money sent him $29.25, total $136.76; and had received to apply on salary, as admitted in the complaint, $63.11, and that there was a balance due him of $73.65. Upon respective motions to confirm, and modify or set aside these findings, the court confirmed them, except that he- found an additional payment by the defendant of $40, which he deducted, and then rendered judgment for $33.64. From this judgment the defendant appeals.