Cooban v. Bryant

Cole, J. It seems to us quite impossible to distinguish [610] these cases in principle from Nimmick v. Mathiesson, 32 Wis., 324. Commissions were paid by the defendant from time to time, generally upon each account, but do not seem to have been applied to the.extinguishment of any particular items or portions of the account; and there has been no settlement or account stated between the parties. Now, in order to ascertain the sum due each plaintiff, it seems to us it is necessary to consider the entire amount of sales made by such party, deducting from the commissions the payments made by the defendant. Besides payments made, the defendant insists that certain deductions should be made from the commissions in each case on machines which were returned by the purchaser, and upon which the agreement was, that only one-fourth of the commission should be paid. But we do not well understand how it is possible to adjust the matters in difference between the parties without considering the entire accounts on both sides. If there had been any settlement of the accounts, and a balance struck; or if payments had been made, to apply upon particular items or portions of the account, so as to extinguish them ; or, what amounts to the same thing, if it appeared that the commissions upon all machines sold, except the particular ones mentioned in the bill of particulars, had been adjusted between the parties, then it might not be necessary to go over with those portions of the account thus settled. But such is not the state of the accounts. The accounts are unsettled. No balance has been stated or agreed upon ; and we are at a loss to know upon what principle the plaintiffs are entitled to select a machine here and another there in the account, and sue for the commissions due upon those machines, without regard to the residue of the account. The complaints allege that .the defendant agreed to pay “ a commission of twenty per cent, on the gross amount of sales” of the machines; and, as there had been no adjustment of the accounts, it was necessary to ascertain the amount of sales made, in other words, to go .over the accounts on both sides. This judicial investiga [611] tion required tbe examination of an account exceeding tbe jurisdiction of a justice of tbe peace. Nimmick v. Mathiesson, supra. Section 9, cb. 120, R. S., as'amended by cb. 142, Laws of 1871, provides that a justice shall have jurisdiction of actions founded on any account when tbe amount of the plaintiff’s account, proved to the satisfaction of the justice, shall not exceed five hundred dollars, and when the same shall be reduced to an amount not exceeding two hundred dollars by credits given or by the setofif or demand of the opposite party. In each of these cases the amount of the commissions on the sales made by plaintiff exceeded five hundred dollars. The amount of such commissions clearly constituted the account upon which the action was founded. The plaintiffs had no right to bring suit on a portion of the account, and restrict all judicial inquiry to such portion of tbe account, without regard to the residue. For the whole account was unadjusted between the parties; and, in order to ascertain the amount due, the whole account had to be considered and examined. It is said by the counsel for the plaintiffs, that the courts of New York have decided, under a similar statute, that whatever has been received or applied specifically as payment would be rejected, and the balance only would constitute the claim, demand or account, within the statute. Abernathy v. Abernathy, 2 Cowen, 416; Matterson v. Bloomfield, 10 Wend., 555; Lamoure v. Caryl, 4 Denio, 370. But here it does not appear that the payments or moneys advanced by the defendant were specifically applied, but they were entirely matters of account or offset. And the whole account of plaintiffs for their commissions is still open and unadjusted. The cases, as it seems to us, fall fully within the reasoning and principle of Nimmick v. Mathiesson, and must be controlled by the decision there made. The objection was taken in each case, that the justice had no jurisdiction because the plaintiff’s account for commissions under the agreement exceeded five hundred dollars; but the objection was overruled by the county court. [612] Of course, if the justice had uo jurisdiction, the eounty court acquired none by the appeal. The objection should have been sustained, and the causes dismissed, for the reasons above given. By the Court. — The judgment of the county court in each case is reversed, and the causes remanded with directions to dismiss the complaints.