Murray Showcase & Fixture Co. v. Sullivan

SHAW, J.

Action to recover upon five promissory notes made and delivered by defendants to plaintiff’s assignor. Judgment went for plaintiff, from which defendants appeal upon a bill of exceptions.

The defense is based upon the alleged fact that in part the notes were without consideration, and that all were procured by fraud and threats to have defendant Sullivan arrested for embezzlement. The notes were duly made and delivered to the Acme Door and Glass Company, which transferred them to plaintiff. On June 21, 1906, one W. E. Little, who was a stockholder and president of the Acme Door and Glass Company, entered into an agreement with defendant Sullivan, whereby the latter was employed as manager of the Acme Door and Glass Company for a period of one year. Under the terms of the agreement Sullivan’s compensation was to be $150 per month and thirty per cent of the dividends derived from the stock owned by said Little in the corporation, which sum of thirty per cent was to be due and payable after the stock had been carefully invoiced and had been figured and rechecked for accuracy. Sullivan entered upon his duties and continued in the employ of the company for the period of one year covered by his contract, drawing his salary of $150 per month, and, in addition thereto, received $311.60 on account of the thirty per cent of the amount paid Little as dividends upon his stock, which dividends were based upon an inventory

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of the property made in January, 1907. At the date of the agreement made between Little and Sullivan, whereby the latter was employed as manager of said Acme Door and Glass Company, Sullivan, pursuant to the terms of his contract, procured from the Etna Indemnity Company a fidelity bond conditioned for the faithful performance of the duties devolving upon him as the manager of said Acme Door and Glass Company. While so engaged as such manager, pursuant to the terms of said contract so made with Little, Sullivan, without right, appropriated goods of said Acme Door and Glass Company to the amount of about $30, and also appropriated the sum of $429.93, to which he was not entitled. Soon after the expiration of his term of employment, he was called upon to make good the shortage and to adjust his affairs with the company, and also to repay the thirty per cent of the dividend declared upon the stock of Little, for the alleged reason that the dividend had been wrongfully declared, inasmuch as the company had not made any profits during the year out of which to declare dividends. After this conversation, and nothing being done, the Acme Door and Glass Company, through Little, its president, wrote Sullivan that unless he arranged to adjust affairs with the company on or before September 3d, that the matter would be placed in the proper channels for collection. Thereupon, Sullivan called upon Little, and, as found by the court, denied owing said sum of $311.60, and insisted he should not be required to refund said amount, but he made no denial as to other sums claimed on account of the overdraft and goods taken by him. Little, however, insisted upon the full amount being paid, whereupon Sullivan offered to give his notes, signed by himself alone, for the full amount claimed, which Little refused to accept, insisting that such notes must be signed by a comaker; and thereupon Sullivan took the notes and left the presence of Little, and on the same day returned and delivered the notes executed by himself and defendant Annie F. Paul. The court further finds that Little did not accuse the defendant of the crime of embezzlement; nor did he menace or threaten Sullivan with criminal prosecution upon the charge of embezzlement; nor threaten to cause his arrest or imprisonment unless he would execute the notes set out in the complaint; nor menace or intimidate Sullivan in order to secure the execu