McCormick v. Ketchum

• Court: Wisconsin Supreme Court
• Writing for the Court: ORTON
• Citation: McCormick v. Ketchum, 51 Wis. 323, 8 N. W. 208 (Wis. 1881)
• Decision Date: 08 February 1881
• Parties: MCCORMICK v. KETCHUM, IMPLEADED, ETC.

51 Wis. 323

8 N.W. 208

MCCORMICK

v.KETCHUM, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed February 8, 1881.

Appeal from circuit court, Portage county.

Webb & Cochran, for respondent.

Patchin & Weed, for appellant.

ORTON, J.

The complaint is for work and labor, and the answer is-- First, that such work and labor were not worth the sum alleged; and, secondly, a setoff for goods, wares, and merchandise, and money, and for board; and, thirdly, as a counter claim, that the plaintiff had been the confidential clerk and bookkeeper of the defendants, and as such had received large sums of money to be expended in their business, for which he has not accounted and refuses to so account, or to deliver up the books and papers. The learned counsel for the defendants moved that the case be referred, because it was a case in equity. The motion was overruled, and then the counterclaim was withdrawn and the cause was tried by a jury, the counsel for the defendants appearing and cross-examining the witnesses of the plaintiff. First, the plaintiff had the right to have his case tried by a jury, it being an action at law; secondly, the reference of the cause was discretionary with the court, (section 2864, Rev. St.;) thirdly, the irregularity, if any, was waived by a withdrawal of the counter claim, and...