Thornton v. Life Ass'n of America
| Decision Date | 04 November 1879 |
| Citation | 7 Mo.App. 544 |
| Parties | AMOS B. THORNTON, Plaintiff in Error, v. LIFE ASSOCIATION OF AMERICA, Defendant in Error. |
| Court | Missouri Court of Appeals |
1. That the examination of a long account may be involved for the purpose of establishing some issue in the case, does not make the case one to be referred without consent.
2. The permission to refer the whole case without consent applies only where the determination of the matter in controversy involves the examination of long accounts between the parties, and the adjustment of the items thereof.
ERROR to St. Louis Circuit Court.
Reversed and remanded.
T. A. RUSSELL, for plaintiff in error, cited: Dederich v. Richley, 19 Wend. 110; Sharp v. Mayor, 18 How. Pr. 216; Keeler v. Plank-road Co., 10 How. Pr. 11; Lord v. Connor, 48 How. Pr. 95; Kane v. Delano, 11 Abb. (N. S.) 29; Graham v. Golding, 7 How. Pr. 260; Turner v. Taylor, 2 Daly, 282; Dooley v. Barker, 2 Mo. App. 325.
IRWIN Z. SMITH, for defendant in error.
The allegations of the petition are, that plaintiff, by contract with defendant, was its district agent at a salary of $60 a month and a commission of twelve and a half per cent on first premiums and five per cent on renewal premiums, to continue whilst the policies remained in force; that after this contract had been in force ten months, it was so modified that plaintiff was to receive a salary of $125 a month and commissions on renewal premiums as before, which was afterwards modified in a manner stated, the commissions on renewal premiums remaining the same. Plaintiff remained in defendant's employ under these contracts until July 11, 1870, and procured many policies, the annual income on which amounted to $8,500, on which he was entitled to five per cent; that defendant discharged plaintiff wrongfully, refused to allow him to collect the renewal premiums, or to pay him the commissions to which he was entitled; that the present value of renewals, as computed by an actuary, is $3,000, at which sum the plaintiff lays his damages. The second count is for damages for a breach of contract of a similar character by which plaintiff became the agent of defendant, to secure as compensation for his services the same commissions and renewals as were paid to the district agents; under which contract plaintiff says he worked from July, 1870, to August, 1871, and by the terms of which he says he was entitled to renewal commissions of five per cent on all policies taken by him. Under this contract, he says, he is entitled to five per cent on an annual income of $6,500; that he was dismissed without fault on his part; and that defendant wrongfully refused to allow him to collect the renewal premiums, or pay him the commissions to which he was entitled. He says that the present value of these commissions is computed by an actuary at $2,000, for which he asks judgment.
The answer is a general denial; and further, that the contracts set out were abrogated by a subsequent contract, with the terms of which plaintiff did not comply, in consequence of which he was lawfully discharged.
On motion of defendant, and against the objection of plaintiff, the cause, so soon as the issues were made up, was referred to a referee.
The only question for our consideration is whether the court erred in referring the case without the consent of both parties.
The court may, where both parties do not consent, direct a reference, “where the trial of an issue of fact shall require the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue, and to report upon any specific question of fact involved therein.” In no other case can the referee be directed to hear and decide the whole issue. Where, during the progress of a cause, it appears that the taking of an account is necessary for the information of the court, a reference may be had for that special purpose. Wag. Stats. 1041, sect. 18.
It is well settled, both here and in New York (from which...
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