Mr. Chief Justice Bean,
after stating the facts, delivered the opinion of the court.
The Constitution of Oregon, Article I, § 17, guaranties to every suitor in a civil action the right to a trial by a jury, of which right he cannot be deprived by the court on its own motion or that of his adversary, unless it affirmatively appears, with reasonable certainty, that the trial will require the examination of a long account on either side: Hill’s Ann. Laws, § 222. Just how long an account must be in order to justify a compulsory reference has not been, and, in the nature of the case, cannot be, exactly determined. Mr. Cooper says: “That the account must be ‘long’is conceded, but just how long it should be the courts have not decided. In fact, from the nature of the case, it is impossible exactly to determine how long the account should be; and, if it were, it would be impolitic and work injustice to lay down rigid *506rules on the subject”: Cooper, Ref., 15. Each case, therefore, depends upon its own facts; and, where there is a conflict in the evidence as to whether the issue involves the examination of such an account, the decision of the trial court will probably not be disturbed on appeal: Welsh v. Darragh, 52 N. Y. 590. But an order directing a compulsory reference in a case where it is not authorized is not only appealable, but will be reversed and set aside by the appellate tribunal, because it denies to a suitor a substantial and constitutional right. Without reference in detail to the adjudged cases, in our opinion the true test by which to determine whether an action involves the examination of a long account, within the meaning of the statute, is correctly stated in Spence v. Simis, 137 N. Y. 616 (33 N. E. 554), as follows : “Facts must be disclosed, either by affidavit or upon the face of the pleadings, from which the conclusion can be fairly drawn that so many separate and distinct items of account will be litigated on the trial that a júry cannot keep the evidence in mind in regard to. each of the items, and give it the proper weight and application when they retire to> deliberate on their verdict” : Cooper, Ref., 15, et seq.; 20 Am. & Eng. Enc. Law (1 ed.), 676: Feeter v. Arkenburgh, 147 N. Y. 237 (41 N. E. 518); Hedges v. Protestant Church, 23 App. Div. 347 (48 N. Y. Supp. 154); Hoar v. Wallace, 24 App. Div. 161 (48 N. Y. Supp. 748); McAleer v. Sinnott, 30 App. Div. 318 (51 N. Y. Supp. 956). This doctrine proceeds upon the theory stated in Cassidy v. McFarland, 139 N. Y. 201, 207 (34 N. E. 893), that “trial by a referee is an exceptional mode of judicial procedure, and, when it is sought to coerce a suitor into a submission to it, the burden is upon the party applying for a reference to show by satisfactory proof that the case is within the excepted class. The rule is not different where the court upon its own motion undertakes to compel a reference.”
Applying these principles to the case in hand, it is appar*507ent that it is not one in which the court could order a reference against the objection of a party thereto-. There was no showing, made outside of the pleadings, and they present substantially but three questions: (i) Did the plaintiff perform work and labor for the defendant during the years 1897 and 1898, for eleven months, of the reasonable value of $40 a month, amounting to $440, as alleged in the complaint, or was his employment for the same time at whatever compensation the defendant should be able and willing to pay, as alleged in the answer ? The only issue between the parties, on this cause of action is as to- the contract under which the plaintiff was employed, and the amount of compensation he was to receive. There is no- question of items or amounts, but as to the terms of a contract, solely. (2) Did the plaintiff during the year 1898 work for the defendant five and one-half months, as alleged in the complaint, or only five months, as alleged in the answer? Upon this cause of aption there is no controversy as to the terms of plaintiff’s employment or the compensation he was to receive, but only as to the length of time he was employed. (3) Was the plaintiff authorized to incur the item of $2 for taking the team to Fairfield, as set forth in the complaint ? These are all simple questions of fact, easily understood, and there could be no- difficulty in an average jury fully bearing in mind and appreciating the evidence in relation thereto-, and in determining the controversy between the parties intelligently. Under such circumstances, the defendant has a constitutional right to- have the case tried by a jury, and because it was denied this right the judgment is reversed, and the cause remanded for a new trial.
Reversed.