Dreveskracht v. First State Bank of Balfour
| Decision Date | 20 November 1907 |
| Citation | 113 N.W. 1032,16 N.D. 555 |
| Court | North Dakota Supreme Court |
Appeal from District Court, McHenry county; Goss, J.
Action by E. F. Dreveskracht against the First State Bank of Balfour. Judgment for plaintiff, and defendant appeals.
Reversed.
Lee Combs, for appellant.
The account to be refered must be between the parties to the action; not between one and a third person. Keller v Payne, 4 N.Y.S. 227; Continental Ins. Co. v. Phoenix Ins. Co., 8 N.Y.S. 524; Betcher v. Grant Co., 68 N.W. 163; Ewart et al. v. Koss, 95 N.W. 913; Kelly v. Oksall, 95 N.W. 915; Williams v Benton, 24 Cal. 425; Grim v. Norris, 19 Cal 140; Clarkson v. Hoyt, 36 P. 382; Silmser v. Redfield, 19 Wend. 21; Camp v. Ingersoll, 86 N.Y. 433; Van Rensselaer v. Jewett, 6 Hill, 373, 41 Am. Dec. 750; Thomas v. Reab, 6 Wend. 503; Untermyer v. Bernhauer, 11 N.E. 847; Thayer v. McNaughton, 22 N.E. 562; Wilson v. Union Distilling Co., 66 P. 170; McMartin v. Bingham, 27 Iowa 234.
Only the issue as to the account can be refered. Williams v. Benton, supra; Seaman v. Mariani, 1 Cal. 336.
In equitable actions alone can compulsory reference be had; in actions at law, right of trial by jury cannot be violated. Con. of N.D., section 7, article 1; Lamaster v. Scofield, 5 Neb. 148; Williams v. Benton, supra; Smith v. Polack, 2 Cal. 92; Grim v. Norris, supra; McMartin v. Bingham, 27 Iowa supra; Camp v. Ingersoll, 86 N.Y. 433; District Township of Grant v. Bulles, 29 N.W. 439; Dacres v. Oregon R. & Nav. Co., 20 P. 601; Plimpton v. Somerset, 33 Vt. 283; Isom v. Miss. Cent. R. Co., 36 Miss. 300; St. Paul, etc., R. R. Co. v. Gardner, 19 Minn. 123.
Where the right of trial by jury existed, when a state constitution was adopted, statute authorizing compulsory reference in a law action is unconstitutional. Steck v. Colorado Fuel and Iron Co., 25 L. R. A. 67; Whallon v. Bancroft, 4 Minn. 109; Flanders v. Warner, 55 N.H. 179; McCullough v. Brodie, 13 How. Pr. 346; Townsend v. Hendricks, 40 How. Pr. 143; Tribou v. Strowbridge, 7 Ore. 156; Mead v. Walker, 17 Wis. 189; Edwardson v. Garnhart, 56 Mo. 81; Lee v. Tillottson, 24 Wend. 327, 35 Am. Dec. 624; Mathews v. Tripp, 12 R. I. 258; Francis v. Beker, 11 R. I. 103, 23 Am. Rep. 424; Perkins v. Scott, 57 N.H. 55, 17 Enc. Pl. & Pr. 994.
Turner & Wright, for respondent.
The statute does not restrict the account to one of debits and credits. Rev. Codes 1905, section 7047.
This is an appeal from an order of reference of all the issues arising on two causes of action in the complaint and two counterclaims contained in the answer; appellant assigning error in substance as follows: (1) That it was error to refer all the issues; (2) that there was no showing that an accounting between the parties was necessary, or that the action was a proper one for reference under section 7047, Rev. Codes 1905; (3) that section 7047 contravenes section 7 of the constitution, which guarantees trial by jury; and (4) that, conceding such statute to be constitutional, it merely authorizes references in cases formerly cognizable in courts of chancery.
The questions embraced in assignments 3 and 4 have been fully considered and disposed of in Smith v. Kunert, 115 N.W. 76, recently decided by this court; hence these assignments will not be further noticed. The view we take of this appeal renders a consideration of the first assignment also unnecessary, although it is practically conceded by respondent in his printed brief and argument that it was error to refer any of the issues except the one arising on plaintiff's first cause of action, the trial of which, it is contended by him, will involve the examination of a long account.
We will therefore turn our attention to appellant's second assignment, a proper consideration of which necessitates an examination of the issues framed by the pleadings of plaintiff's first cause of action. Do the pleadings disclose upon their face that the trial of such issue will require the examination of a long account upon either side? If not, then it is plain, as was held in Smith v. Kunert, supra, that the order appealed from was not authorized under the provisions of our Code (section 7047) relative to compulsory references. It is not contended that the order complained of was based on any showing aside from the pleadings themselves, that the trial of the issue would necessitate the examination of a long account.
Plaintiff's first cause of action is alleged in substance as follows: That plaintiff was employed by defendant between January 1 and November 15, 1902, at an agreed compensation of $ 65 per month and 10 per cent of the net profits earned by plaintiff during such employment; that such net profits amounted to $ 8,861, and that no part of such compensation other than the monthly salary had been paid. The answer admits such employment between the dates aforesaid, but alleges that the terms were a monthly salary of $ 60 and 10 per cent commission on the net profits of defendant bank over and above a 12 per cent dividend upon the capital stock of said corporation after deducting all losses and bad debts. Then follows an allegation of payment in full for such services and an acknowledgment in writing by plaintiff of such fact, after which the answer contains a denial of each allegation in said cause of action, except as theretofore admitted, qualified or explained. It will thus be seen that the denial last mentioned is the only portion of the answer which in any manner tends to raise an issue, the trial of which may necessitate the examination of any account. But the fact that the trial of an issue of fact may require the examination of a long account is not alone sufficient to authorize a compulsory reference, but it must affirmatively appear to the court that the trial will necessarily require the examination of a long account. Smith v. Kunert, supra; Ewart et al. v. Kass, 17 S.D. 220, 95 N.W. 915; Kelly v. Oksall, 17 S.D. 185, 95 N.W. 913; Andrus v. Home Insurance Co., 73 Wis. 642, 41 N.W. 956, 3 L. R. A. 271; Thayer v. McNaughton, 117 N.Y. 111, 22 N.E. 562. Furthermore, it must appear that the account to be examined is one directly involved and existing between the parties as distinguished from an account such as the one claimed to be involved in the case at bar, arising between the defendant and third persons, and which at most is merely involved collaterally. Camp v. Ingersoll, 86 N.Y. 433; Betcher v. Grant Co., 9 S.D. 82, 68 N.W. 163; McAleer v. Sinnott, 30 A.D. 318, 51 N.Y.S. 956; Bank v. Werner, 54 A.D. 435, 66 N.Y.S. 996; Cassidy v. McFarland, 139 N.Y. 201, 34 N.E. 893; Spence v. Simis, 137 N.Y. 616, 33 N.E. 554; Keller v. Payne, 51 Hun 316, 4 N.Y.S. 227; Kain v. Delano, 11 Abb. Pr. (N.S.) 29. Nor does it necessarily appear from the pleadings that the trial will require a detailed examination of the entries in the defendant's books in order to arrive at its net profits. McAleer v. Sinnott, supra.
The case last cited was an action to recover a balance claimed to be due plaintiff for services as manager of defendant's liquor business. Plaintiff's compensation consisted of commissions on the amount of sales. The answer denied that the plaintiff's services were worth the amount alleged in the complaint, and alleged that the plaintiff had been fully paid, except a certain sum named. Upon the pleadings and an affidavit by the plaintiff, an order of reference was made and, in reversing such order, the Supreme Court, through Bartlett, J., said: ...
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