7 Mo. App. 544 | Mo. Ct. App. | 1879
delivered the opinion of tbe court.
The allegations of the petition are, that plaintiff, by contract with defendant, was its district agent at a salary of $60 a month and a commission of twelve and a half per cent on first premiums and five per cent on renewal premiums, to continue whilst the policies remained in force ; that after this contract had been in force ten months, it was so modified that plaintiff was to receive a salary of $125 a month and commissions on renewal premiums as before, which was afterwards modified in a manner stated, the commissions on renewal premiums remaining the same. Plaintiff remained in defendant’s employ under these contracts until July 11, 1870, and procured many policies, the annual income on which amounted to $8,500, on which he was entitled to five per cent; that defendant discharged plaintiff wrongfully, refused to allow him to collect the renewal premiums, or to pay him the commissions to which he was entitled; that the present value of renewals, as computed by an actuary, is $3,000, at which sum the plaintiff lays his damages. The second count is for damages for a breach of contract of a similar character by which plaintiff became the agent of defendant, to secure as compensation for his services the same commissions and renewals as were paid to the district agents ; under which contract plaintiff says he worked from July, 1870, to August, 1871, and by the terms of which he says he was entitled to renewal com
The answer is a general denial; and further, that the contracts set out were abrogated by a subsequent contract, with the terms of which plaintiff did not comply, in consequence of which he was lawfully discharged.
On motion of defendant, and against the objection of plaintiff, the cause, so soon as the issues were made up, was referred to a referee.
The only question for our consideration is whether the court erred in referring the case without the consent of both parties.
The court may, where both parties do not consent, direct a reference, “ where the trial of an issue of fact shall require the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue, and to report upon any specific question of fact involved therein.” In no other case can the referee be directed to hear and decide the whole issue. Where, during the progress of a cause, it appears that the taking of an account is necessary for the information of the court, a reference may be had for that special purpose. Wag. Stats. 1041, sect. 18.
It is well settled, both here and in New York (from which State the provision of our statute is derived), that the permission td refer the whole issue without consent applies only to cases where accounts, in the ordinary meaning of that term, exist between parties and require examination.
But, though in an action the examination of an account between the parties is in its nature referable if the account
The pleadings in this case show no long accounts between the parties to be examined. The referee found for the defendant on the issues, without considering any accounts at all. Nor does it appear that the claim as set out could involve accounting or accounts in any proper sense of the word. As is said by Judge Wagner in Lewis v. Insurance Company, 61 Mo. 539, “ a custom exists with insurance companies by which adjustments are made as to the value and renewal of policies for any given length of time. By the use of statistical tables and comparisons, a remarkable degree of accuracy is obtained ; and where the connection ceases between an agent and the company, it is .the only mode of ascertaining or adjusting the agent’s interest. The calculation of the actuary has been reduced to scientific principles, and it must be resorted to, else there would be a failure of justice on one hand or the other; the damages
The uniform tenor of decisions in.New York upon the clause in their Code of Procedure, which is identical with our own, leaves no room for doubt as to the meaning of the law. No cause can be referred without consent, except as expressly authorized by statute. Kain v. Delano, 11 Abb. Pr. (n. s.) 35; 2 Daly, 282; Turner v. Taylor, 10 How. Pr. 11; 18 How. Pr. 207; 40 How. Pr. 162. The present action was in no way founded upon an account of any kind.
We think that the learned judge erred in referring the cause against the objection of defendant, and the judgment is therefore reversed and the cause remanded.