Opinion
December, 1901.
Carrington Pierce, for appellant.
John A. Kamping, for respondent.
The plaintiff sues as assignee of Thomas V. Johnson, late president of defendant, for salary claimed to be due for his services as president. The plaintiff alleges that Johnson was made president of the defendant upon its organization in 1891, and that his salary was then fixed by the board of directors at $3,000 per annum. This seems to be conceded. He claims further that the amount of salary to be paid him was never changed. The defendant interposes two affirmative defenses. It sets up as a counterclaim two promissory notes made by plaintiff in 1893, which it has taken from the holders and now holds. Under the evidence the right to sue upon these notes has been barred by the Statute of Limitation. Costello v. Downer, 19 A.D. 434; Connecticut Trust Co. v. Wead, 58 id. 493. The second defense is that on or about January 1, 1897, the plaintiff agreed with defendant that he should no longer receive a fixed salary, but should receive a percentage of the profits as compensation for his services, and that plaintiff's assignor had received not only all the profits to which he was entitled, but had also received advances in excess of his share of the profits amounting to more than the sum sued for. The evidence sustained this second defense, and justified the conclusion that the plaintiff's assignor and three others, comprising all the directors, as well as all the stockholders of the defendant corporation had made such an agreement as is set up in the complaint. The fact that this agreement was not reduced to the form of a resolution and entered upon the minutes of the company is not important. So long as the defendant agreed to the modification of the provision for his compensation, as the evidence shows that he did, and acted under it, it does not now lie in his mouth to now disaffirm it.
MCADAM, P.J., and MACLEAN, J., concur.
Judgment affirmed, with costs.