Webster v. Freeman

PULLEN, P. J.

This action was originally filed by plaintiff against William Freeman on a claim for wages.

The original complaint was in three counts, the first count being for services rendered by plaintiff to defendant between 1918 and 1934 or 70 months at $100 a month, and alleged no part of the $7,000 had been paid. The second count was based on an open book account for services in the sum of $7,000, and the third cause of action was based upon an agreement whereby plaintiff undertook the care and management of defendant’s farming interests, and was to receive $100 a month, together with his living and traveling expenses; that plaintiff, relying upon the honesty and integrity of defendant, kept no books, but defendant did keep accurate books and plaintiff asked for an accounting between himself and defendant.

Defendant demurred, and the first cause of action was dismissed as barred by the statute of limitations. In the answer the allegations of the second count were denied, and as to the third count defendant replied as follows:

‘1 Answering the allegations of plaintiff’s third cause of action defendant admits that plaintiff went to work for defendant on or about the 1st day of October, 1918, for '$100.00 per month, and that he continued his employment up until the first day of May, 1934, but defendant denied that he owes said plaintiff any sum of Seven Thousand Dollars ($7,000.00) or any portion thereof but said defendant alleges that he has paid to and for the use and benefit of this plaintiff from the 23rd day of August, 1918, up to and including the 28th day of April, 1934, the total sum of Eleven Thousand Four Hundred Fifty-five and 07/100 Dol

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lars ($11,455.07), in lawful money of the United States of America.”

It is the contention of appellant that by this answer defendant admitted an unpaid balance of $7,244.93, being the difference between the amount claimed by plaintiff and that defendant admits having been paid.

After this ease was at issue, but before trial, William Freeman died, and an amended and supplemental complaint was filed. The supplemental complaint set up the death of Freeman and the appointment of Frank William Freeman as executor, and the amendment set up a cause of action in one count based upon an open, mutual and current account. The amended answer to this amended and supplemental complaint pleaded the statute of limitations, denied the material allegations of the amended complaint and set up a counterclaim for credits and cash advancements of a sum in excess of $21,000. The trial court found that the counterclaim offset the amount owing to plaintiff, and entered judgment accordingly.