Jacob North & Company v. Angelo

• Citation: 105 N.W. 1089,75 Neb. 373
• Decision Date: 20 December 1905
• Docket Number: 13,855
• Parties: JACOB NORTH & COMPANY ET AL. v. EVA ANGELO. [*]
• Court: Nebraska Supreme Court

105 N.W. 1089

75 Neb. 373

JACOB NORTH & COMPANY ET AL. v. EVA ANGELO. ^[*]

No. 13,855

Supreme Court of Nebraska

December 20, 1905

ERROR to the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Reversed.

REVERSED.

Wilson & Brown, for plaintiffs in error.

T. J Doyle, contra.

JACKSON C. DUFFIE, C., concurs. ALBERT, C., not sitting. SEDGWICK, J., dissents.

OPINION

JACKSON, C.

On March 6, 1903, the defendant in error, hereafter styled the plaintiff, instituted an action before a justice of the peace in Lancaster county against the plaintiffs in error, hereafter styled the defendants. The bill of particulars upon which the cause was tried in justice's court, omitting the caption, is as follows:

"Plaintiff, complaining of the defendants, avers that said defendants entered into a contract in writing with plaintiff on or about the year of 1897, which said contract was made by Jacob North, Sr., who was then the president and manager of Jacob North & Company of Lincoln, Nebraska, and who also represented the defendant, Clarence S. Paine, by the terms of which said contract the defendants agreed to pay to the plaintiff, as a commission for taking orders for the history of Nebraska, $ 7.50 for each order procured, and further agreed to pay to the plaintiff 10 per cent. commission on the collection of money due for histories sold, and also agreed to pay to the plaintiff $ 40 a month for services rendered in gathering data for said history; and, in pursuance of said contract, did sell and procure 15 orders for said histories, and there is due to the plaintiff from the defendants therefor the sum of $ 150, no part of which has been paid; that the names of the parties of whom said orders were procured are as follows: Mr. L. W. Colby, Judge Hazlett, Mr. Hoyte, Dr. Sprague, Mrs. Minnick, Mr. A. J. Sawyer, Prof. Caldwell, state library of Nebraska, school library and Allen Fisher. The names of the other parties to whom sales were made, this plaintiff has not a list but turned the same in, and the same are upon the records of the defendants, who have refused to permit this plaintiff to see the same, and plaintiff cannot at this time give a full statement of the names of all the parties, nor can the plaintiff more definitely describe the names of those herein given, for the reason that she has not the full names of the parties. The contract, which was in writing, providing the compensation of this plaintiff for said work, this plaintiff cannot set out in full at this time, for the reason that the same is not in her possession, but is in the possession of the defendant. At a time when this defendant turned in her records in pursuance of the request of the defendants pertaining to said business, said contract was delivered, through inadvertence, with the other papers, and since said time has been in possession of the defendants and defendants have refused to return the same to plaintiff. Said contract, in the employment of this plaintiff, was repeatedly referred to and ratified by the defendants, after the same was made. On the 12th day of November, 1901, the defendant, Clarence S. Paine, wrote this plaintiff with reference to said contract as follows: 'If you are still after those people (referring to the collections placed in the hands of this plaintiff) and pushing matters, well and good, but, if not, I should like to have you return histories and supplies, etc., as I can use them. In any event I should like to hear from you.' This was written for the defendants, and all of them, in recognition of the contract of this plaintiff, hereinbefore referred to. Again, on the 9th day of December, 1901, the defendant, Paine, for all of the defendants wrote this plaintiff as follows: 'Please return at once the History of Nebraska, contracts and supplies which you have. It seems to me that I have waited as long as I should be required to for you to show some interest in the business which you have in hand. Don't you think so?' Parties from whom collections were made, so far as this plaintiff can give a list of same, are as follows: Mr. Abbott, Mr. Stearns, Mr. Tyrrell, Mr. Stevens, Mr. Raymond, Mr. A. J. Sawyer, Mr. McBrien, Mr. Dodson, Governor Thayer and Chancellor Andrews, and numerous others whom this plaintiff cannot name for the reason that the list and records of the same are in the hands of the plaintiff. The dates of the collections this plaintiff cannot give with any degree of accuracy, for the reason that she has not the data which she turned in in her report to the defendants, and the defendants have full and complete records of the collections made, and the time of making the same, and the parties from whom they were made, and will not give this plaintiff access to their records or permit her to obtain said data until so ordered by the court. The months for which plaintiff was employed by the defendants, for which she claims the sum of $ 65, were as follows: From about September 12 to December 20, 1901. Plaintiff further says, in pursuance of said contract she collected for said defendants the sum of $ 300, and there is due to this plaintiff from said defendants for said services so performed the sum of $ 30, no part of which has been paid. Plaintiff further avers that she worked for said defendants for the period of three months by the terms of said contract, and there is due to this plaintiff from said defendants therefor the sum of $ 65, no part of which has been paid. Plaintiff avers that, by reason of the premises, there is due to this plaintiff from the said defendants the sum of $ 200, no part of which has been paid. Wherefore the plaintiff prays judgment against the defendants for the sum of $ 200 and costs of suit."

From a judgment favorable to the plaintiff, the defendants appealed to the district court. In the district court the plaintiff filed a petition substantially the same as the bill of particulars. The issues were joined in the district court upon this petition by proper pleadings and the case proceeded to trial. The trial of the case in the district court occupied the attention of the court for several days. During the progress of the trial, and after the taking of testimony had commenced, plaintiff asked and obtained leave of court, over the objection of the defendants, to amend her petition, the record being this: "Plaintiff requests the court for permission to amend the petition by inserting after the words 'was made,' on the second page of the petition, the words 'adopted and accepted the terms thereof.'" Objections were made on behalf of both defendants, but the amendment was allowed, and exceptions taken, and the trial proceeded. On the third day of the trial, the plaintiff, over the objections of the defendants, obtained leave of court to file, and did file, an amended petition which, omitting the caption, is as follows:

"Plaintiff complaining of the defendants, avers that on or...