Fouratt v. Goodman

SHENK, J.

This is an appeal from a judgment in favor of the plaintiff in an action on a promissory note for $300. In his answer the defendant alleged certain false and fraudulent representations on the part of the plaintiff in procuring the contract which was the basis of and consideration for the note. By way of cross-complaint the defendant set forth more particularly the fraud alleged in the answer and prayed that said promissory note be canceled and that the defendant receive from the plaintiff the sum of $7,200 on said cross-complaint.

The defendant was transacting business under the fictitious name of Goodman’s International Importing and Exporting Company. On April 15, 1921, the plaintiff and the defendant entered into a contract whereby the plaintiff engaged to assume a qualified management of the defendant’s business and was to receive as compensation therefor a graduated

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percentage of the gross sales of the company. He served in that capacity until May, 1925. Shortly prior to February 16, 1925, a dispute arose between the parties with reference to the amount of money, due the plaintiff under the contract of April 15, 1921, and the sales that had been made by the company. In an endeavor to compromise the controversy a conference was had between the plaintiff and the defendant in the office and under the direction of the defendant’s attorney. A settlement was then and there agreed upon under which the defendant acknowledged his indebtedness to the plaintiff in the sum of $748.56 and the plaintiff agreed to accept as full settlement the sum of $148.56 in cash and two promissory notes for $300 each, one of which is the note sued on herein. Under date of February 16, 1925, a written contract was signed by the parties confirming the settlement shortly theretofore agreed upon, the same to constitute a full acquittance, the one against the other. In May, 1925, the plaintiff was injured in an automobile accident and the defendant had occasion to assume management of the affairs of the company. Upon an examination of the books of the concern he concluded that the plaintiff had been computing his commissions on an erroneous basis and had been retaining excessive amounts therefor. The plaintiff apparently did not return to the service of the defendant after his injury and this action was commenced in August, 1925.