Paulsen v. Schultz

Thornton, J. Plaintiff brought this action to recover for services rendered to the defendants as copartners, under the style of Schultz and Von Bargen, upon three separate causes of action. The first was for $393.45, for services rendered by himself to the defendants; and the other two were for $160, respectively, for services rendered to the defendants by one Frudenberg and one Knell, which demands they respectively assigned to the plaintiff. The defendants, in their answer, denied that they were indebted to plaintiff for services rendered by him personally to any greater extent than $76.45, and averred that between January 1, 1884, and April 18, 1885, the plaintiff had, while employed by them at the rate of $100 a month as a book-keeper, overdrawn the sum of $780, which should be allowed them as an offset to his claim. A verdict for $76.45, in favor of plaintiff, was rendered, and a judgment thereon entered.

Plaintiff, being dissatisfied with the judgment, appeals therefrom, and also from an order denying him a new trial, for the reasons that the evidence is insufficient to sustain the verdict, and that certain prejudicial errors of law were committed.

At the trial it was conceded that the amounts plaintiff [540]sued for, as assignee, were due; and that the only issue in the case was as to whether the salary of the plaintiff, as book-keeper for the defendants, had been reduced from $150 per month to $100 per month, and if so reduced, when the reduction was made.

The evidence shows, without conflict, that the plaintiff worked for the defendants for a number of years as bookkeeper, for an agreed salary of $150 per month, and that while the defendants may have contemplated reducing it to the sum of $100 per month, on and from January 1, 1884, to April 18, 1885, which would make a difference to the extent of the amount they claim he overdrew his salary, no such reduction was in fact made, or intimation of it given to the plaintiff. When he left their service and submitted a statement of his account to one of the partners, which showed a claim of wages at the rate of $150 per month from January 1, 1885, to April 18th of the same year, with a credit of $146.50, and a balance of $397.45 due him, it was pronounced correct, and when subsequently brought to the attention of the other defendant for payment, was not disputed. There is no evidence that he overdrew his account, but, on the contrary, there is abundant evidence, which must, because not contradicted, be regarded as conclusive, showing that the defendants were indebted to him to the extent of his claim for personal services, from which it resulted that he was entitled to recover it, and also, as assignee, the full amount of the other two demands, which were not disputed. Since this is so, it is apparent that the verdict is not sustained by the evidence.