Shaw v. Roberts

The question is whether “the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars.” Code Civil Proc. § 2863. The defendant had been in the service of the plaintiffs, and his services were proved to amount to $561. Apparently the amount of the accounts of the plaintiffs was $1,005.53, after deducting an error of $15.35 in what was termed the “Braley and Noxon Item.” The apparent amount of the defendant’s accounts was $811, after deducting the same $15.35, charged therein to counter-balance the error in the plaintiffs’ account. Of the plaintiffs’ account, more than $729.86 were cash items received by the defendant from them. The defendant testified, and was not contradicted, that he had returned to the plaintiffs $250 upon the amount received from them, and had charged himself in their books with $479.26. It was for the justice to find as a fact whether the $250 returned to plaintiffs was as a payment upon their advances, and whether the $479.26 which defendant charged to himself in their books was a payment to himself upon his services. The,justice manifestly so found, and, as it was a fair infeience of fact from the testimony, we must accept his finding. These payments extinguished pro tanto the sum total of the accounts. The defendant’s account, therefore, was for his services, $561, less $479.26 paid thereon, leaving it $81.74. The plaintiffs’ account of $1,005.53 was reduced by the $250, repayment, and the $479.26 applied in payment of defendant’s services, leaving it $276.27, making the sum total of both accounts $358.01, and thus within the jurisdiction of the justice, and making the difference $194.53, for which he rendered judgment against the defendant. The complaint was to recover $200 for money, services, and merchandise for which the defendant, who “has been in the employ of the plaintiffs,” was indebted to them “in excess■ of the amount of the services.” The answer contained a general denial; claimed $600 for services; alleged a contract by which, in addition to $1,200 per year, the defendant was to receive 2J per centum of the profits; and claimed $1,300 damages because of his premature and unjust discharge from, service. Error is alleged with respect to testimony given by one of the plaintiffs tending to show that there were no profits. No testimony was given by the defendant tending to show that there were any profits. Grant that plain*580tiffs’ testimony was incompetent, and should have been excluded, its exclusion would not help the defendant. The case would then be barren of all evidence upon this point, and without evidence the defendant’s claim would have to be rejected. If there was anything of it, it was an affirmative claim for the defendant to plead and prove. The defendant did set it forth in his answer. The form of the complaint cast no burden on the plaintiffs to disprove it; for, if it can be said that the complaint implied that some amount was due the defendant for his services, in the absence of all proof a nominal sum, not exceeding six cents, would fully satisfy the legal implication. The defendant complains of some rulings upon the admission and exclusion of evidence. We do not think the defendant was prejudiced by any of them. The defendant did not dispute in his testimony any of the items the plaintiffs adduced, and clearly he must have had full knowledge respecting their validity.

Judgment of the county court reversed, with costs. All concur.