Merchants Collecton Agency v. Roantree

BEASLY, J.,

pro tem.

This action was brought to recover the balance due on a promissory note in the sum of $3,950, executed by the defendants in favor of Gilmartin Company (a corporation), plaintiff’s assignor, upon which the amount of $1,125 had been paid. The defense offered by both defendants was lack of consideration for the note and duress in obtaining it. The trial court found against these defenses, and awarded plaintiff judgment as prayed. This appeal is from the judgment and an order denying defendants ’ motion for a new trial.

James Roantree was employed before the San Francisco fire of April 18, 1906, as bookkeeper for the Gilmartin Company, a printing concern, and received for his services $125 a month. The printing establishment was totally destroyed in that fire, and in the month of July thereafter the company undertook to re-establish its business. Roantree was re-employed, and acted in the various capacities of bookkeeper, salesman, solicitor, assistant manager, and at times sole manager, and as such devoted more time and was burdened with more arduous and responsible duties than formerly. No salary was formally fixed for him by the officers of the company, but he drew from time to time during each month as he needed

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it sums which at the end of four and one-half years aggregated an amount which would represent payments to him of $290 a month. These sums so received by Roantree were drawn openly and were all duly entered, upon the books of the concern, either by himself or an assistant bookkeeper. In December, 1910, Roantree, having accepted a position with another printing establishment, gave notice of his intended resignation from the Gilmartin Company, and asked the president, James Gilmartin, for an adjustment of certain money invested by him in the company. Gilmartin then charged Roantree with having drawn from the funds of the company some five thousand dollars more than he was entitled to, and demanded restitution -thereof. Roantree denied that he owed anything, claiming that all moneys drawn by him were in payment of salary. The matter was placed in the hands of the company’s attorney, and a demand made upon Roantree for the sum of four thousand one hundred dollars, this- amount being arrived at as a balance claimed to be due from Roantree for money drawn as above stated after crediting him with $150 a month as salary for the first six months after his re-employment, and two hundred dollars a month for the remainder of the period down to December, 1910.