On appeal from the Essex County Court of Common Pleas.
For the defendant and counter-claimant-appellant, Harry Green.
For the defendant on the counter-claim-respondent and plaintiff and defendant on the counter-claim-respondent, Budd & Larner.
Before Brogan, Chief Justice, and Justices Parker and Porter.
The opinion of the court was delivered by
PORTER, J. This appeal is from a judgment in favor of the plaintiff Manufacturers' Casualty Insurance Company on both counts of its complaint and against the defendant on his counter-claim against the plaintiff and against the Manufacturers' Fire Insurance Company which was made a defendant on said counter-claim. These two corporations were affiliated with each other and were treated at the trial and on the briefs as one company. Their interest in this case seems to be identical and they will be considered and referred to hereafter as the plaintiff or the company.
It appears that the defendant Mink was engaged in business as an insurance agent and broker and that on March 15th, 1937, he entered into an agreement with the plaintiff to act as its agent in the writing and placing of insurance contracts and in the collection of the premiums due thereon. On November 24th, 1937, he was indebted to the plaintiff in connection with his agency for premiums collected in the sum of $3,097.77. On that date he gave to plaintiff his promissory note for that sum due on demand and made an agreement with plaintiff whereby he was to continue to represent the company and to remit all premiums collected by him to the company when received, that he was to receive a drawing account of $50 weekly and that his commissions on the premiums collected would be charged against the drawing account and the said indebtedness.
It further appears that on April 25th, 1939, it was found that he had not remitted all premiums collected and that the amount not accounted for was the sum of $1,374.78. At that time the commissions credited to him on premiums accounted for less his drawing account reduced his indebtedness on the $3,097.77 note to the sum of $498.15. His total indebtedness to the plaintiff at that time was $1,872.93. These facts are not in dispute except that the defendant claims that he then made a new agreement with plaintiff whereby the debt was discharged which is the subject-matter of his counter-claim.
The first count in the complaint is for $498.15, the balance claimed due on the note for $3,097.77. The second count is
for $1,374.78 and is grounded on the allegation that this sum was "willfully, maliciously and fraudulently misappropriated and converted" to his own use. To both counts defendant counter-claims. He says that after April 25th, 1939, and until he was discharged without cause on July 21st, 1939, he was continued in his employment with plaintiff and that on May 19th, 1939, a verbal agreement was reached between them whereby the entire indebtedness was canceled upon his assigning to plaintiff his interest in his insurance business in force with the company subject to be reassigned to him upon his payment of the debt within six years and plaintiff continuing to employ him as a salesman for one year at a salary of $45 weekly and commissions on new business, &c. He says that after his discharge the plaintiff solicited his insurance accounts and thereby obtained a large part of his business.
The only issue in dispute in the case seems to be whether or not an agreement was entered into and breached by the plaintiff as alleged by the defendant in his counter-claim.
The plaintiff admits that it agreed to continue the defendant in its employ under terms and conditions to be arranged by the manager of its Newark office and that pending the conclusion of negotiations of the terms of the agreement he was employed under certain definite instructions as to his duties. A written agreement was prepared by plaintiff's Newark manager and submitted to defendant who found it unsatisfactory and refused to sign it. Plaintiff says that defendant having disregarded ...