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Besser v. Eisler Electric Corp.

Decided: May 17, 1935.

HYMAN BESSER, INDIVIDUALLY, AND TRADING AS BESSER & COMPANY, PLAINTIFF-RESPONDENT,
v.
EISLER ELECTRIC CORPORATION, A CORPORATION OF DELAWARE, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, Stuhr & Vogt.

For respondent, Hannoch & Lasser.

Hetfield

The opinion of the court was delivered by

HETFIELD, J. This is an appeal from a judgment of the Supreme Court entered summarily upon an order striking out the defendant's answer to the first count of the complaint. The plaintiff, who was an accountant, brought suit to recover for services rendered to defendant, pursuant to the terms of a certain contract. The first count of the complaint alleges, in substance, that on October 24th, 1932, the defendant retained the plaintiff to audit its books and to make monthly reports thereon, for which service he was to receive the sum of $300 each month. The agreement consisted of a letter upon the defendant's stationery, addressed to the plaintiff, and signed by Chas. Eisler, president, and reads:

"We hereby retain you to continue to audit our books, as before, and to make monthly reports thereon, for which we

agree to pay you $300 per month. Any work which you may do for us in addition to the regular audits will be paid for at the usual per diem rates. This agreement, in consideration of the special rate, to continue in effect until December 31st, 1936."

It is further alleged that plaintiff performed all the duties required by the agreement, and that he was not permitted to audit defendant's books for the months of July and August, 1934.

The first defense in the defendant's answer denies all allegations of the complaint, excepting its refusal to allow the plaintiff to make the August audit, which is admitted. The other defenses are: (2) the contract of October 24th, 1932, was ultra vires; (3) that the plaintiff had been paid for all services performed; (4) that plaintiff had failed and neglected to perform his services according to the agreement; (5) that the contract of October 24th, 1932, is void because it was not to be performed within one year, and should have been reduced to writing as required by the statute.

The proof submitted on the motion to strike, which was based on the ground that the answer was sham and frivolous, consisted of the plaintiff's affidavit, which supported the complaint and also stated that in March, 1934, at the request of C. A. Laise, who succeeded Charles Eisler as president of the defendant company, he consented to accept $250 per month instead of $300, as stipulated in the agreement, and for the months of March, April, May and June, his monthly payments were reduced to said amount, and also the affidavit of Charles Eisler, which in effect, stated that he was president of the defendant company from May, 1929, when it commenced business, to January, 1934, and that during said period he was in general charge of the operation of the company's affairs; that he found it necessary and desirable to have monthly audits made by competent accountants, and that immediately after the company was organized, he engaged the plaintiff for that purpose, making such agreements with him as were necessary with respect to his work and compensation; that in October, 1932, he engaged the plaintiff to

continue to audit the company's books, the terms of which were expressed in his letter of October 24th, 1932. The only affidavits used in opposition to the motion was that of C. A. Laise, now president of the company, which states that he had no knowledge of the agreement of October 24th, 1932, but admits the receipt of plaintiff's letter consenting to the reduction of the monthly payments, which he requested, and wherein a contract was referred to, and further states that he believed that the reference was to other monthly contracts which had existed between the plaintiff and the company since April, 1930, but he does not state who made such contracts on behalf of the company. Said affidavit further states that the agreement of October 24th, 1932, was never authorized or ratified by the corporation, and that it was not within the scope of the then ...


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