
    INGRAM v. STEIN.
    126 S. W. (2d) 891.
    Middle Section.
    December 10, 1938.
    Petition for Certiorari denied by Supreme Court, April 1, 1939.
    
      Elkin Garfinkle, of Nashville, for appellant Jake Stein.
    Tkos. TI. Peebles, of Columbia, for appellee John G. Ingram.
   CROWNOVER, J.

Tbe complainant, Jobn G. Ingram, filed bis original bill in this canse seeking to recover compensation for bis services as bookkeeper, it being alleged tbat no contract was ever entered into between tbe complainant and tbe defendant Stein as to tbe amount of tbe complainant’s monthly salary and tbat, therefore, tbe fixing of bis compensation should be determined on a basis of quantum meruit; tbat tbe reasonable value of bis services was $50 per month; tbat be worked for tbe defendant six years, drawing approximately $25 per month, in small checks and in merchandise; and tbat there is a balance due him of $1,614.04.

Tbe defendant filed an answer and cross-bill. He alleged tbat a definite contract bad been made between him and Ingram tbat be should be paid $25 per month; that be earned in six years’ time the sum of $1,800; tbat be drew, in cash and merchandise, tbe sum of $1,972.96; and be asked, in bis cross-bill, for a decree against Ingram for $172.96.

When tbe cause came on to be beard, tbe Chancellor, without deciding any issues, referred tbe case to tbe Clerk and Master, and directed him to examine tbe pleadings and evidence and report on the following questions:

“1. Was tbe complainant, John G. Ingram, employed by tbe defendant, Jake Stein, at no fixed salary, or was it tbe understanding tbat be was to be paid a reasonable value for bis services 1

“2. If be was so employed,* what is tbe reasonable value of bis services and what amount is due him?

“3. Was tbe complainant employed by tbe defendant at a fixed salary of $25.00 per month?

“4. If he was so employed, has be overdrawn said salary, and if so, in what amount??-”

Both the complainant and the defendant excepted to said reference.

The Clerk and Master reported as follows:

“I beg leave to report that I have read tbe pleadings and proof on file which is here referred to and from tbe proof beg to report in response to tbe first question tbat John G. Ingram was employed by Jake Stein, and was to be paid a reasonable value for bis services.

“Replying to tbe second question report tbat tbe sum of $50.00 per month is a reasonable amount to be paid for the services rendered and the sum of $1614.04 is due John G. Ingram from Jake Stein.

“Replying to tbe third question report that tbe complainant was not employed at tbe fixed salary of $25.00 per month.”

The defendant, Stein, filed exceptions to tbe Master’s report, which were overruled by the Chancellor. The Chancellor confirmed tbe report and decreed tbat John G. Ingram recover of tbe defendant, Jake Stein, tbe sum of $1,614.04 together with interest on tbe same from May 19, 1937, making a totai of $1,666.50.

Tbe defendant Stein excepted to said decree and appealed to tbis court'and bas assigned errors, wbicb are, in substance, as follows:

(1) Tbe Chancellor erred in referring tbe whole case-to tbe Master; ibwas tbe Chancellor’s duty to determine tbe issue involved.

(2) Tbe Chancellor erred in failing to bold that tbe defendant Stein bad made a contract with Ingram to keep tbe books of bis stores for tbe sum of $25 per month.

(3) Tbe evidence preponderates against tbe finding of tbe Chancellor.

John G. Ingram was employed by Jake Stein from December 1, 1928, to November 30, 1934, a period of six years. He was about fifty-eight years of age when first' employed. His duties were tbe keeping of tbe books and typewriting letters.

Stein bad four stores in 1928. He disposed of one in 1931, one in 1932, and one in 1933; tbis left him with only bis store in Mt. Pleasant.

Ingram was at tbe store in Mt. Pleasant from 8:30 in tbe morning to about 4:15 in tbe evening every day.

He did not draw a fixed amount per month, but drew checks at intervals in sums of $10, $2, etc. He bought articles of merchandise, charging himself on bis account. In six years’ time be drew a total of $1,972.96.

Stein discharged him.

He drew up a claim against Stein for $50 per month for six years less tbe amount drawn by him, and. contended that Stein was indebted to him in tbis amount — $1,614.04.

1. Tbe defendant’s first assignment of error is that tbe Chancellor erred in ordering a reference in tbis cause.

Tbe order of reference, hereinabove set out, asked tbe Master to determine and report to tbe Chancellor whether a contract bad been entered into between Stein and Ingram for a fixed amount per month.

Tbis was tbe main controversy in tbe cause, and for tbis reason, although it was a question of fact, we are constrained to bold that tbe Chancellor was in error in referring it to tbe Master. State ex rel. v. Bolt, 130 Tenn., 212, 169 S. W., 761, and cases cited; Reed Bros. Stone, Inc., v. Pittman Const. Co., 20 Tenn. App., 552, 557, 101 S. W. (2d), 478.

In Gibson’s Suits in Chancery, 4th Ed., sec. 596, it is said:

‘ ‘ Tbe line of division, between matters proper to be referred to tbe Master, and matters not proper to be referred, is not well defined; but it may be stated, generally, that tbe main issues of tbe controversy, and tbe principles on wbicb these issues are to be adjudicated, must be determined by tbe Chancellor, while collateral, subordinate, and incidental issues, and tbe ascertainment of facts ancillary to tbe determination of the main issues, or to the execution of the decree, may be referred to the Master.*’

The Chancellor was in error in referring the cause to the Master. However, the decree recites that the Chancellor considered all the evidence before rendering his decree.

But, the reference having been improperly ordered, it results that there is no concurrent finding of the Chancellor and the Master. Reed Bros. Stone Co., Inc., v. Pittman Const. Co., supra; State ex rel. v. Bolt, supra.

This court will therefore pass upon the case.

2 and 3. The defendant’s second and third assignments of errors must be sustained. Ingram testified that no contract for a definite salary was entered into. Stein testified that he made a contract with Ingram to pay him $25 per month. Rosenburg testified that Ingram told him his salary was $25 per month.

Ingram testified that when he was hired Stein asked him what he would charge per month and he told Stein he would charge what other firms had been paying him; that no agreement was reached as to the amount of Ms salary.

Stein testified that he made a contract with Ingram when he hired him, and agreed to pay him $25 per month.

Stein further testified that the work of keeping his books should not take more than an hour per day for two days a week; that he now pays a bookkeeper $20 per month, and she works about fifteen minutes a day, after she leaves another place where she is employed, except on Saturday, on which day she works two or three hours. He testified that no claim was made by Ingram that he owed him anything until after he was discharged.

Abe Rosenburg, a brother-in-law of Stein, who also is a merchant in Mt. Pleasant, testified that Ingram, after he had been working for Stein for a year or two, asked him if he could give him any work to do; that Ingram told him that Stein paid him only $25 per month. This was denied by Ingram.

This was all the evidence about the contract of hiring.

"We are of the opinion that the preponderance of the evidence is that a contract was made between Ingram and Stein that Ingram should be paid $25 per month. For six years Ingram had drawn approximately $25 per month (in checks and merchandise), and admits he never mentioned, during that time, to Stein, that he was entitled to a hundred per cent, more salary. His explanation of why he didn’t ask for it was that Stein was “always hard up” and “hard to get money out of.” But it seems more likely that Ingram would have been hard up, drawing $25 per month, than Stein with a business. Ingram made up financial statements for Stein every three months. He admits that he did not include in those statements, as a liability, any amounts that Stein owed him.

It results that the final decree rendered by the Chancellor in this cause will be reversed, and the complainant’s bill is dismissed. It was stated by counsel for cross-complainant at bar that cross-complainant waived any claim against Ingram for a recovery on overpayment claimed in cross-bill; therefore no'decree will be rendered' against Ingram, except as to costs. The costs of the cause including the costs of the appeal are decreed against Ingram and the surety on his prosecution bond.

Faw, P. J., and Felts, J., concur.  