Shade

It was more than a year after the entry of judgment in this case when the notice of appeal from the judgment and from the order overruling the motion of defendant for a new trial was given. The appeal from the judgment has, therefore, been dismissed, and only the appeal from the order remains to be considered.

The nature of the action is fully disclosed by the second paragraph of the complaint, which reads as follows: “ That the said defendant herein is indebted to the plaintiff in the sum of one thousand five hundred and ninety-seven and twenty one-hundredths dollars ($1,597.20) on account of work, labor, and services rendered and performed within two years last past by plaintiff for defendant as foreman of defendant’s mill at Sisson, county of Siskiyou, state of California, at defendant’s special instance and request.”

The answer denies any indebtedness, and alleges payment of all salary due except three dollars and thirty-eight cents, tender of which is pleaded. The verdict of the jury was for the plaintiff for four hundred and fifty dollars, and judgment accordingly.

It appears from the statement of the evidence that the defendant—-a corporation—has been engaged since the…

I dissent. The transactions between the plaintiff and the defendant do not, in my opinion, disclose any of the elements of an estoppel; nor do I think that the receipt and retention by a laborer, without objection, of a statement of account rendered him by his employer, is governed by different rules from those which control a similar transaction between other parties. No reason is urged in support of such a proposition, other than that of estoppel, and no authority is cited to sustain it. In McClain v. Schofield, 74 Hun, 437 , 26 N. Y. Supp. 700 , the plaintiffs were commission merchants, and sold goods manufactured by the defendants, for which they had received a commission of three per cent. Subsequently the plaintiffs were informed by the defendant that for the future they would pay a commission of only two per cent, and assented thereto. The statements thereafter rendered by the defendants were made upon this basis, and the plaintiffs, without objection thereto, accepted payment of the amount thus shown. The basis of the rule which renders such transactions between other parties the equivalent of an account stated is that the acceptance, without objecting thereto within a…