Carbolineum Wood Preserving & Manufacturing Co. v. Meyer

Terral, J., delivered the opinion of the court. The appellee brought suit by attachment against the appellant for three and one-third months’ services as manager of a saw mill at $100 per month ($320), and for money paid to the defendant’s use at its request, being $183.48, aggregating $503.48. The only amount in dispute was the $320 for three and one-third months’ services or wages. The writ was levied upon certain property of the defendant, which was bonded by it. The suit was in assumpsit for a purely and technically legal cause of action. The appellee pleaded a pending suit in the chancery court of the same county for the same identical cause of action. The plea in abatement alleges that the' chancery court had jurisdiction of the case, but the allegations of the plea do not allege such a state of facts as would give the chancery court jurisdiction of the case. It is true that under section 147 of the state constitution, if the chancery court had assumed jurisdiction and had made a decree in the case, it would not have been reversed merely because the cause of action was not of equitable jurisdiction, but the chancellor, of his own motion, could have dismissed the suit, and the plaintiff would have been without remedy. A plea in abatement is looked upon with disfavor, and the failure of the pleader to allege that the remedy in the suit pending in the chancery court was as ample and efficient as the suit in the circuit court rendered the plea ill. In the suit in the circuit court the plaintiff had a lien on the property seized out of which to collect any debt recovered by him against the defendant, and it does not appear by the plea in abatement that this remedy in the chan [590] eery court would have been as effective. The plea, we think, was bad. Block v. Lackey, 2 B. Mon., 257; Hatch v. Spofford, 22 Conn., 485; Blanchard v. Stone, 16 Vt., 234; Griswold v. Bacheller, 77 Fed. Rep., 857; Story’s Eq. Prac., sec. 742. An instruction for the plaintiff declared ££ that if the plaintiff performed the services mentioned in the account sued on and the defendant accepted said services, the jury can find for the plaintiff such an amount for said services as they think proper, unless they believe he was to receive no compensation therefor. ” The words italicised are claimed to be error, and for them should have been substituted the' words £ £ such sum as the evidence showed the plaintiff was entitled to recover.” The instruction was perhaps not technically correct, but the jury were hardly misled by its want of technical accuracy. They doubtless understood that their decision should be made so as to effect the understanding of the parties to the contract —that is, to find according to right and justice, and not according to their personal wishes or ideas of propriety. Affiirmed.