
    The Averill Coal and Oil Company v. Thomas Verner.
    1. In an action for the recovery of money wherein the only relief prayed for is a money judgment, either party is entitled to demand a trial by jury, notwithstanding numerous items of account, or of claim and counter-claim are involved in the issue.
    2. In such action the defendant, though in default of answer, is entitled, under section 598 of the code, to demand a jury to assess damages. And if it be irregular in such case for the court to make an order (on the motion of the plaintiff and against the objection of defendant), referring the cause to a referee for trial, and granting leave to defendant to answer generally, at a future day, such irregularity is cured if the defendant, after answer is filed, appear before the referee, and, without protest or objection to his jurisdiction, submit his cause to him upon the issues and proofs.
    3. A motion to recommit the report of a referee in order that a party to the suit may except to the findings of the referee, and tender a bill of exceptions for his allowance, is addressed to the sound discretion of the court, and the overruling of such motion does not constitute error, for which the judgment will be reversed, unless it appears that such discretion was abused.
    4. Interest from and after maturity may be allowed on items of wages or salary, payable monthly. But in computing interest on unsettled demands, it is error to make annual rests, and having found the balance (including interest) then due, to carry the same as principal into subsequent statements, and allow interest thereon to the party in whose favor such balance was found.
    6. On a motion for leave to file a petition in error, the defendant will be permitted to remit, on the record of the court below, any excess that may be found in the judgment; and when such remittitur is properly entered, the motion will be overruled.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    
      The original action was brought by defendant in error against plaintiff in error for the recovery of certain sums of money. The petition contained four several causes of action. The first was for a balance due upon a special contract for services rendered by plaintiff, at the agreed rate of $500 per month ; and the others were for balances due on account of moneys loaned and money paid for defendant’s use. The case made by the petition embraced numerous items of debit and credit; but no relief was prayed for, except a money judgment.
    The action was commenced on the 1st of November, 1870. The defendant was in default of answer until June 13, 1871, at which time the cause, by consent of parties, was referred for trial, and leave given to defendant to answer within four days. On the 15th of same month the order of reference, on the motion of defendant, was vacated, and the following order made, to wit: “And thereupon, the court, on motion of the plaintiff, refers all questions of law and fact in the case to A. R. Dutton, Esq., a referee, under the code of civil procedure, with full power to compel the attendance of witnesses, the production of books, papers, and documents, and to hear and decide and report upon said case without unnecessary delay. And it is ordered by the court, that said defendant shall file its answer herein on, or before, the 26th day of June, A. n. 1871, and in the meantime said referee may proceed to hearing the case.” To which the defendant excepted.
    On the 26th of June, the defendant filed its answer, containing specific denials, as well also as matters of set-off and counter-claim.
    On the 28th of same month, the plaintiff replied, denying all new matter contained in the answer.
    Shortly after the issues in the case were thus made up, the referee entered upon the hearing of the case. Both the plaintiff and the defendant appeared before the referee and were fully heard by witnesses and by counsel. The testimony, which was quite voluminous, was closed on the 21st of November, 1871, and, by agreement of parties, the case was postponed for argument to 6th of May, 1872, at which time both parties were fully heard in argument by the referee.
    The referee filed his report on the 10th of June, 1872, finding $8,556.69 in favor of the plaintiff.
    During the time the case was pending before the referee, it does not appear that any objection was made, either to the court, or to the referee, as to the jurisdiction of the latter to hear and determine the cause, or as to the regularity of the order of reference, nor was any exception, by bill or otherwise, taken to any ruling, order, or finding of the referee.
    On the 14th day of June, 1872, the defendant filed exceptions to the report, and a motion for a new trial, on the grounds:
    1. That the action was one in which the defendant was entitled to a trial by jury; and said reference was originally made against its consent:
    2. That 'said report was contrary to the law and the evidence of the case:
    3. The referee erred in construing the original contract between the parties, and in not charging the plaintiff with house rent and for coal used while in the employment of defendant:
    4. The referee erred in charging the defendant interest on monthly balances on a running.account:
    5. The referee erred in not charging the plaintiff -with the sum of four huudred dollars received on the discount of Drown & Manner’s note :
    6. The referee erred in allowing the plaintiff $125 for services rendered after he left the defendant's employment:
    7. For other errors in the report.
    The exceptions to the report and the motion for a new trial were overruled by the court, and the defendant excepted.
    Afterward, on the 17th day of same month, the defendant filed a motion to send the case back to the referee, to enable the defendant to except to the report and ten ler a bill of exceptions to the referee for his allowance. The grounds upon which, this motion was based were, that the defendant had no knowledge of the findings of the report, until after it was filed, and had no opportunity to take exceptions before the referee. Thi3 motion was heard upon testimony, and was overruled. To which overruling the defendant excepted, and by bill of exceptions set out the tesimony offered on the hearing of the motion.
    Afterward the defeudant filed a motion in arrest of judgment, and stated the following grounds:
    1. The court had no jurisdiction to send the ease to a referee without the consent of the defendant:
    2. The referee had no jurisdiction to hear and determine said cause:
    3. The court had no jurisdiction to render judgment on said report:
    4.. Eor other reasons appearing in the record.
    This motion was also overruled, and judgment rendered on the report in favor of the plaintiff. To all which the defendant excepted.
    The cause was afterward removed to the general term of said court by petition in error, to reverse the judgment rendered at special term. The judgment was affirmed by the court at general term. Leave is now asked to file a petition in error, to reverse the judgment of affirmance, and also the judgment at special term.
    
      Lincoln, Smith $ Stephens, for the motion.
    1. The action was brought to recover money -only, and either party was entitled to trial by a common law jury. Work v. The State, 2 Ohio St. 296-306; Ladd v. James, 10 Ohio St. 437. The order of reference, being objected to by the defendant below, was erroneous.
    The case at bar is not one of mutual accounts; hence not within the jurisdiction of a court of equity. Story’s Eq., sec. 458-462; Phillips v. Phillips, 9 Hare’s Ch. 471; Padwick v. Hurst, 18 Beav. 579; Foley v. Hill, 2 House of Lords, 28; Patrick v. Stanley, 9 Hare, 627; Dunwiddie v. Bailey, 6 Ves. 136; Porter v. Spence, 2 Johns. Ch. 169-171; 
      Smith v. Leveaux, 2 De Gex, Jones & Sm. 1; Fowle v. Lourason, 5 Pet. 495.
    2. The court below, though vested with a discretion in the matter, ought to have sustained the motion to recommit the report to the referee, to enable the defendant below to move for a new trial, and obtain a bill of exceptions, because of the circumstances established by the evidence submitted under the motion.
    3. The report shows the findings of fact and conclusions of law arrived ,at by the referee; and the court had power to correct any error committed by the referee, either in the statement or application of the law. lie did so err in allowing Yerner fuel and house rent in addition to his salary of five hundred dollars per month, and also in computing interest; also, in holding that under a contract fixing his compensation at five hundred dollars per month, such compensation was payable monthly. Larkin v. Buck, 11 Ohio St. 561; Davis v. Maxwell, 12 Met. 286; Stein v. Prairie Rose, 17 Ohio St. 471; Palmer v. Stockwell, 9 Gray, 239; Myers v. Walker, 24 Ill. 137; Simmons v. Clark, 13 Ill. 547; Kennedy v. Gibbs, 15 Ill. 406.
    
      Okey, Morton § Okey, and John C. FLealy, contra:
    1. No demand was made in court, or before the referee, fora trial by jury; no objection was made before the referee to a trial before him; no motion for a new trial was made or exception taken before the referee in any form, and no objection of any sort was interposed in the Superior Court, from the day the order of reference was made until after the report was filed. The exception entered on the journal at the close of the order of reference is too general. See cases collected in Ohio Dig., tit. Rules of Decision.
    2. The order of reference was rightly made under section 376, civil code, the defendant being in default. And as it proceeded to trial before the referee, and made no demand for a jury as it might have done, under section 598, it thereby waived its right thereto. See Dailey v. The State, 4 Ohio St. 57-59; Voorhies’ Code of 1868, 496; Nash’s Pr. 531; 1 Caines, 147; 1 Code R. 125; 7 How. Pr. 41; 3 Abbot’s Pr. 171, 142 note; 1 Hilton, 173; 25 N. T. 496; 1 Abbott, 173; 14 N. Y. 143; 3 E. D. Smith, 280; 2 Sandf. 641; 2 Caine, 157; 17 N. Y. 490; 13 Mich. 439; 1 Cincinnati Sup. Court Rep. 341. The leave given to file answer at a future day did not affect the order of reference made while the default continued.
    3. In fact there is but one cause of action set forth in the petition, and that is for an account, and though there is no prayer for an account, the court can grant it, because the averments authorize that relief. Swan’s Pl. & Pr. 231, 240; 10 Paige, 415; 3 E. D. Smith, 690; 10 N. Y. 51. See also the last paragraph in the opinion of Welch, J., 15 Ohio St. 218. And the reference was therefore rightly made, even if the defendant was not in default. Johns v. Wallace, 7 Ohio 62, pt. 2; Stanley v. Cincinnati, 1 Cincinnati Sup. Court Rep. 69. See also Mills v. Noles, 1 Ohio, 534; Carlisle v. Foster, 10 Ohio St. 198; Neilson v. Fry, 16 Ohio St. 552, 556; Massie v. Stradford, 17 Ohio St. 596; McCrary v. Parks, 18 Ohio St. 1; Howell v. Fry, 19 Ohio St. 556. And Sprague v. Childs, 16 Ohio St. 107, and Smith v. Anderson, 20 Ohio St. 76, are not in conflict with the views we have expressed.
    The remedy in equity applies in favor of an agent as well as in favor of a principal. Story Eq. Jur., sec. 462 a; Hill v. South Straf. Railway, 11 Jur. N. S. 192; Nicholson v. Pim, 5 Ohio St. 25, 32; Ludlow v. Simond, 2 Caine’s Cases, 1-53.
    4. The court could not review the findings of the referee unless the evidence was before it in a bill* of exceptions. Lawson v. Bissell, 7 Ohio St. 129-132; Wesleyan Cemetery v. Woodruff, 2 Dis. 216.
    And a motion for a new trial should have been first made before the referee. Westfall v. Dugan, 14 Ohio St. 276; lo Ohio St. 211; Randall v. Turner, 17 Ohio St. 262; Holt v. Lamb, Ib. 374; Turner v. Turner, Ib. 449; Ide v. Churchill, 14 Ohio St. 372-378.
    5. We admit that when it plainly appears from facts found in the referee’s report that material error has intervened, the court should interfere, but submit that the true rule is stated by Hunt, Chancellor, in Tomlinson v. The Mayor, 44 N. Y. 601-6,05. See also Hill v. Grant, 46 N. Y. 496-499; 58 Barb. 241-248; Mosher v. Hotchkiss, 3 Keyes (40 N. Y.) 161.
    6. Yerner was entitled to his pay at the close of the month, and interest thereon from that time. 1 Am. Lead. Cas. 513; 2 Bro. Ch. 3; Williams v. Sherman, 7 Wend. 109-112; Still v. Hall, 20 Wend. 51; Stuart v. Binsee, 10 Bosw. 436-445; Act of 1824, S. & C. 742. And see Anketel v. Converse, 17 Ohio St. 11.
    7. As to the referee’s mode of computation, see Miller v. Clark, 5 Lansing, 388.
    8. The granting of the motion for a recommittal of the report was within the discretion of the court; moreover the bill of exceptions does not purport to set forth all the evidence offered on the hearing of the motion. Coil v. Willis 18 Ohio, 28-31; Hall v. Reed, 17 Ohio, 498; Hicks v. Person, 19 Ohio, 426; Wilson v. Ohio, 2 Ohio St. 319; Youman v. Caldwell, 4 Ohio St. 71; Eastman v. Wright, 4 Ohio St. 156; Ide v. Churchill, 14 Ohio St. 372.
    9. If the referee has allowed too much interest, we stand ready to remit it upon the record below.
   MoIlvaine, J.

It is claimed by plaintiff’ in error that the court at special term erred in sending the case, on the motion of the plaintiff below, and without the consent of the defendant, to a referee for trial, and that such reference was made in violation of the right of the defendant to a trial by jury.

On the other hand it is claimed, in the first place, that the action was not one in which either party could of right demand a jury either before or after issue joined. In this view of the defendant in error we can not concur. In an action for the recovery of money, wherein no relief other than a money judgment is prayed for, either party may demand a jury, notwithstanding numerous items of account, or of claim and counter-claim, be embraced in the issue joined-or tendered. Code of Civil Procedure, secs. 263, 598; also, Johnson v. Wallace et al., 7 Ohio (pt. 2), 62.

By section 876 cf the code, it is provided, however, that the court may, in any action where the taking of an account, or the proof of a fact, or the assessment of damages, is necessary to enable the court to pronounce judgment upon failure to answer, refer the same to a referee on the motion of the party not in default. At the time the order of reference was made in this case, the defendant was in default of answer, and no jury was demanded.by it at that or at any other time during the pendency of the action. It is true that it objected to the reference, and at the same time obtained leave to answer at a future day. And it may be conceded that it was irregular under such circumstances to order a reference. But. we think that it does not necessarily follow that a judgment thereafter rendered in the case, on the report of a referee, against the defendant, must for such reason be reversed. To test the question whether such practice is, per se, fatally erroneous, let us suppose that the defendant, relyirg upon his objection to the order of reference, had not answered within the leave granted, and had not afterward appeared in the case, to demand a jury, under section 598 of the code. In such case it is quite clear to our minds that the order of reference would have stood well, under section 376 of the code, and the judgment on the report could not be disturbed.

In the case before us, however, the answer was filed within the rule granted, and upon it, issues of fact were joined. The defendant, however, instead of demanding a trial by jury, appeared before the referee, and without further protest or objection to his jurisdiction, fully, and we think voluntarily, submitted its cause to him for adjudication. Having thus embraced and enjoyed an opportunity of obtaining a favorable decision from the referee, we think it. clearly right that it should be held to have waived its objection to the manner in which the reference was made, and also its right to demand a jury for said trial.

2. It is also claimed that the court below, at special term, erred in overruling the motion to recommit the report of the referee, so as to enable the defendant to except to his findings of fact, and to tender a bill of exceptions for his allowance.

The ground upon which this motion was urged was that the defendant had no knowledge of the findings in the report until after it was filed, and had no opportunity of taking exceptions. On the hearing of the motion testimony was heard, and a bill of exceptions taken setting it out. From the testimony it appears that defendant’s counsel stated professionally that he did not see the report until after it was filed, and had no opportunity before the filing to move the referee for a new trial, or to set out the whole of the testimony in a bill of exceptions. The referee, however, testified that in the morning of the day the report was filed, he informed defendant’s counsel that the report was ready to be filed. That the counsel expressed a wish that he would retain the report three or four days, until certain parties could be consulted, but was told by the referee that if the plaintiff desired it, the report would be filed at once.

An opportunity should certainly be afforded to the parties by the referee, before filing his report, to examine it, and to tender, if desired, a bill of exceptions for his allowance, so that such facts as might be necessary to protect them against the consequences of errors committed on the trial, may be placed on the record. But we can not say that the court erred in finding, from this testimony, that such opportunity had been afforded the defendant in this case. For aught that appears, prompt action on the part of the defendant would have enabled it to place its exceptions in tbe hands of the referee before the report was filed. The cause had been finally submitted to the referee more than a month before the report was filed. No notice was given to the referee that exceptions would be taken or a bill tendered in any event, nor was any request to see the report made. "When counsel was informed that the report was ready to be filed, it does not appear that even an inquiry was made as to the result of the trial.

The referee was not hound to retain the report for days until parties could be consulted, but, on the other hand, it was the duty of the defendant to be ready to except. Had notice been given that an exception was desired, no doubt a reasonable time to prepare a bill would have been allowed by the referee.

3. Did the court below err in overruling the exceptions to the report, or in refusing to grant a new trial ?

The exceptions and the grounds for a new trial were identical. The first, which related to the order of reference, we have already considered. The others, in so far as they relate to matters of fact found by the referee, can not be considered here, for the reason that the testimony upon which they were found is not embodied in the record. The fourth exception, namely, that the referee erred in charging the defendant interest on monthly balances in a running account, relates, however, to matter appearing in the report. It appears that the referee found that the salary of the plaintiff became due and payable monthly, and interest was allowed upon each month’s salary from and after maturity. In this we do not find any error. But it further appears that, in stating the account between the parties, the referee made annual rests at the end of each calendar year. And having found the balance due at the end of each year (including interest), he carried the same into the statement for the ensuing year, and allowed interest thereon to the party in whose favor the balance was found. As to this mode of calculating interest, the referee reports: “ This is the mercantile method. There is good authority for it, and it is perfectly fair.” By this we understand that the method' was adopted by the referee, not because of any proof or facts shown in the case, but because it was authorized by the laws of the state. In this we think there was error. It is a method of compounding interest, and is not sanctioned by the laws of this state. But inasmuch as the finding of this error would not, if the ease were on the general docket, result in the reversal of the whole judgment, but only to the extent that usury has been allowed, and the defendant in error now offers to remit any excess that may be found in the report and judgment, leave may be taken by the defendant in error to enter a remittitur for such excess on the record in the court below. And if done within thirty days, this motion for leave to file petition in error will be overruled.

We find no other error in the record.  