The opinion of the court on the motion to dismiss was delivered by WatkiNS, J.
On the merits, by BlanchaRD, J.
ON Motion to Dismiss Appeal.
Watkins, J.The defendant Tremoulet has filed a motion to dismiss the appeal on the ground, that this court has not jurisdiction rations materias — claiming, that the amount in dispute is, only, $411.00, exclusive of interest — all the items demanded in the plaintiff’s petition having been admitted as correct, save the one for that sum.
This motion is resisted by the plaintiff and appellant, on the ground, that there is in contest, a sum in excess of two thousand dollars, which she claims was the amount earned by the investment of the funds by the defendant while in his hands; and which he, as her agent, failed to remit.
The plaintiff resides in Wiesbaden, Germany, and alleges that the defendant is justly and legally indebted to her, in the sum of $17,-779.64, with interest as hereinafter prayed for, for this, to-wit:
That during the minority of your petitioner, the defendant herein, acting as the agent and attorney in fact of Mrs. Julie Beugnot, mother of the petitioner and her duly appointed tutrix, collected for petitioner’s account from the Succession of Dr. J. F. Beugnot, petitioner’s paternal grandfather, the following sums, to-wit:
*456July 10th, 188S .$2,000' 00
January 11th, 1880...10,223 53;
August 4th, 1891 . 127 78'
July 6th, 1895 . 2,918 33.
Total......$15,269 64
That of said sum he has paid to your petitioner’s tutrix, On July 16th, 1888 ...$1,000 00
Leaving the said defendant indebted to your-petitioner in the sum of.... .$14,269 64
That said defendant has further collected for your petitioner seven installments of one hundred and seventy dollars each, or a total of $1100, as follows:
The succession of J. F. Eeugnot held a note which had not yet matured, the interest thereon.was collected annually, and the share of your petitioner in said interest was collected as aforesaid by the defendant: but of the said amount of $1190, after considerable delay, he remitted to your petitioxicr $680, leaving him indebted to her in the sum of $510 on this item.
Your petitioner further avers, that defendant herein, at various times sent your petitioner certain remittances, as follows:
August 28th, 1889 .$ 980 00
August 26th, 1890 . 1,000 00
September 3rd, 1891 . 1,000 00
September 27th, 1892 . 500 00
February 7th, 1893 . 500 00
February 16th, 1894 . 500 00
September 1st, 1894 . 500 00
March 10th, 1897 . 1,000 00
Total.$5,980 00
That said remittances were forwarded to your petitioner as the interest earned on the capital collected by and on deposit with the defendant, which said annual interest earnings were, by defendant, declared to be four thousand marks in German money, or, approximately, one thousand dollars in money of the United States.
“Under said statement of the defendant, your petitioner is, yet, entitled to the following instalments in interest:
*457“For the years 1892, 1893, $500 eacb.$1,000 00
“For the years 1895, 1896, $1,000 each.$2,000 00
“Total due for interest earned.$3,000 00
“Now your petitoner avers, that the sum due your petitioner by the “ defendant was repeatedly demanded from him, hut the request was “ answered by the said defendant with representations as to the c'om- “ paratively large income which the capital earned, if the deposit was “ left with the defendant, and it was under such conditions only that “ the same were left with him.”
Petitioner represents, that since she has become of age, and her tutrix, during her minority, frequently demanded settlements of the defendant without avail, and her prayer is for judgment against him for the amount first mentioned.
The defendant for answer pleads the general denial, and annexes thereto a detailed statement of the amounts received by him, and payments made, aggregating in amount of receipts, $16,45.9.64, and payments $9,672.43, leaving a balance due plaintiff of $7,787.21.
Immediately thereafter, the plaintiff filed a motion for judgment pro confesso against the defendant for the sum of $7,787.21, as having been admitted, “postponing the settlement and adjudication of all “ matters and issues therein, all questions of interest and income on “ capital on default, and all other matters of whatever nature in dis- “ pute herein between the parties, until such time as the suit will come “ before the court in regular order of the docket.”
And, to this effect, the judge a quo rendered and signed a judgment.
In his reasons for judgment, the judge a quo makes use of this statement:
“This left no issue to be tried, except defendant’s charge for 2% "per cent, commission, say $411.49, for collection and trouble, and “ plaintiff’s demand for interest.
“The correctness of all the items of defendant’s account is admitted “ by the plaintiff. Defendant’s right- to commission and plaintiff’s “ right to interest are the sole issues. It is admitted if defendant is' “ entitled to commission at all, that $411.49, the sum charged, is the “ proper amount.”
In his reasons for judgment, the judge a quo takes up these two items separately, and disposes of them.
*458£n discussing the latter item, the judge says:
“The interest collected was remitted as received, as the correspond- “ once shows; and sums from the capital were, also, remitted from “ time to time, in response to the call for plaintiff’s schooling, to as- “ sist her in her contemplated marriage, etc.”
And, after making a further summary of the evidence, he further says:—
“If the account rendered be true, and this is admitted by plaintiff “ (except that she denies commissions and claims interest), then his “ tender relieved him from the demand, and put the plaintiff in mora, “ as I have found that defendant was not in default, previously; he “ owed no interest, and tendered plaintiff all that she was entitled to, “ unless it is shown that he used her capital for Ms own advantage.
“The question, therefore, arises, did defendant use plaintiff’s money “ for his own use, or speculate upon it?”
After making a further statement of facts, the judge concludes his reasons, thus:—
“I-Te ha's paid plaintiff all that he owed her, and he still holds the “ bonds; they were his bonds, and not plaintiff’s.
“He bought them and held them to secure the plaintiff, and not as “her property.
“She does not claini the bonds.
“He had ample funds of his own to’ buy them.
“Their value or earnings are of no moment here.
“During jris management of plaintiff’s affairs, he remitted to her “ mother for plaintiff’s account, $7,758.04, etc.”
On this statement he concludes that the defendant is not indebted to plaintiff for the amount claimed.
On this condition of affairs as presented in the record, and on the reasons of the judge a quo for .his judgment, the plaintiff’s appeal is predicated; and, in our opinion, she is entitled to a hearing before this court, because there seems to be still in contest an amount within the jurisdiction of this court.
Therefore, the motion to dismiss is denied.