Colley v. Succession of Latourette ( 1852 )

By the court:

Preston, J.

Latourette was a maker and vendor of maps. The plaintiff was employed by him, at intervals, from January, 1846, until July, 1849, in traveling with and for him, throughout this State, in procuring information for his maps, getting subscribers and selling the maps, collecting money, and other services. His employments were much the aspect of agencies ; but the district court, the counsel of the parties, and the witness to his original employment, have regarded him as a clerk, and we see no sufficient reason to take a different view of his employment.

He was employed at the rate of thirty-five dollars a month, his expenses to be paid, and sues for wages during the whole term from his engagement, until the death of Latourette, admitting, on the trial, credits to the amount of four hundred and twenty dollars.

The prescription of three .years, under the 3503d article of the code, is plead by the defendant, against the claim of the plaintiff, for services previously to the 16th of September, 1848, being three years before the institution of this suit. The plaintiff contends that the plea cannot prevail, because his services were admitted in the original answer, and payment and compensation plead against them. The plea of prescription is not isconsistent with the admission, that the debt was once due, nor with the plea of payment and compensation. On the contrary, it supposes a debt to have existed, and that it has been extinguished by payment, compensation, or otherwise.

It is next contended, that the claim for services is not prescribed, because they were continued until within less than three years before the institution of the suit. But the contrary was expressly decided by the late Supreme Court in several cases. 5 L.R. 15. 6 N. S. 226. 14 L. R. 553. And in the last case arising under the article of the code invoked in this case, the judgment of the court was fortified by such cogent reasons as to command our unqualified approbation.

We think the district court made a reasonable allowance to the plaintiff, for his services, according to the proof in the record.

The judgment appealed from is affirmed, with costs.