Clark v. Morris

KING, P. J., pro tem.

The action is for a sum claimed under an oral contract of employment at $120 per week and ten per cent of all business secured by plaintiff, amounting to $3,268.50.

The answer of E. W. Morris and Daisy L. Morris and Morris Audit Company (no other defendant appearing) admits that plaintiff entered into the contract of employment with defendant E. W. Morris by which plaintiff was to

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receive $120 per week and ten per cent "commission on all-fees or charges paid to defendants by its clients over and above the sum of $25,000.00; that under said sum of $25,000.00 plaintiff was to receive no commission.”

The answer also denies that E. W. Morris and Daisy L. Morris were copartners conducting business under the firm name and style of Morris Audit Company (as alleged in the complaint), "but allege that the Morris Audit Company is E. W. Morris.”

Defendants filed an amendment' to the answer, alleging that the amount of "fees obtained by plaintiff for the defendants” was $30,320.02.

The court found for plaintiff and gave judgment against the defendants for $3,032, commissions on this full amount, and $80 .balance of salary.

Defendant’s motion for a new trial was denied, and appeal taken from the judgment and from the order denying motion for new trial.

The main contention by appellants is the highly technical claim that:

"1. There was no copartnership.

"2. Daisy S. Morris was not a copartner in Morris Audit Company.

"3. No contract was entered into by the plaintiff to which Daisy L. Morris was a party, and under which she incurred any obligation or had any liability.

"4. The contract sued upon was between the plaintiff and E. W. Morris only, and E. W. Morris alone is liable thereunder.”

It is true that no evidence was introduced as to the Morris Audit Company being a copartnership nor was Daisy L. Morris mentioned in the testimony.