115 Wis. 20 | Wis. | 1902
Lead Opinion
The following opinion was filed February 18, 1902:
Sec. 3512, Stats. 1898, defines and limits the jurisdiction of justices of the peace, and provides, among other things, that a justice shall have jurisdiction over:
“(1) Actions arising or growing out of contract express or implied, wherein the debt or balance due or damages claimed shall not exceed two hundred dollars. (4) Actions founded on any account when the amount of the plaintiff’s account, proven to the satisfaction of the justice, shall not exceed five hundred dollars and when the samé shall be reduced to an amount not exceeding two hundred dollars by credits given or by the setoff or demand of the opposite party.”
The justice before whom this action was brought held that it was an action upon an account which originally exceeded $500 and fell under the fourth subdivision, above quoted, and hence he dismissed the action for lack of jurisdiction. The circuit court affirmed this ruling, and the only question presented which we find it necessary to pass upon is whether this ruling was right.
The plaintiff claims, on the other hand, that it is an action arising out of an express contract, wherein the balance due does not exceed $200, and hence that it falls clearly within the grant of jurisdiction contained in the first subdivision, above quoted; that, being expressly included within one sub
By the Qourt. — Judgment affirmed.
Appellant moved for a rehearing, which was granted April 22, 1902, and the cause was reargued May 16, 1902.
Rehearing
The following opinion was filed June 19, 1902:
A rehearing was granted in this case because the court was in doubt whether the former opinion-was correct in stating that this case was substantially identical with the case of Nimmick v. Mathiesson, 32 Wis. 324, and
In the present case, however, under the undisputed testimony, there was a, definite contract on one side to sell, and on the 'other side to buy, eleven certain tubs of cheese already in existence, and known to both parties, at eleven cents per pound. All that was left to be done was to weigh it and de
So we conclude that tire present action is clearly an action arising out of, and brought to enforce, an express contract of sale of definite articles of property, within the meaning of the first subdivision of sec. 3572, Stats. 1898, and not properly an action “founded upon an account,” within the terms of the fourth subdivision of that section. But we are here met with the contention that the words “balance due,” in the first subdivision, mean a balance agreed on by the parties, and hence that the action cannot be maintained in a justice’s court under that subdivision, because there was no such agreement in this case; and the case of Barker v. Baxter, 1 Pin. 407, is cited in support of the position. It is true that it was held in that ease by the territorial supreme court that the words “balance due,” in a section somewhat similar to the one now under consideration, must receive their technical meaning as a balance found due by debtor and creditor upon settlement
It is further suggested by the respondent that, even if the court erred in dismissing the cause for want of jurisdiction, still the evidence showed that there was a settlement or accord and satisfaction proven by the giving, and acceptance
By the Gourt. — Judgment reversed, and action remanded with directions to reverse the judgment of the justice and to render judgment for the plaintiff for $68.98, with interest from December 20, 1899.