Watson v. Gillespie 237 N.Y. 522

Robert A. Watson, Appellant, v. William Gillespie et al., Copartners under the Firm Name of Gillespie Bros. & Co., Respondents.

Contract — master and servant — • account stated — action by employee employed under written contract to recover on alleged account stated.

Watson v. Gillespie, 205 App. Div. 613, affirmed.

(Argued October 24, 1923;

decided November 27, 1923.)

Appeal from a judgment, entered June 12, 1923, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint. Plaintiff was employed by defendants under a written contract on a profit-sharing basis. This action was brought upon an alleged account stated. The question presented on appeal was whether a “ current account,” so intended and so labeled, rendered as a basis of subsequent liquidation by an employee employed by these defendants, can or has in this case by acceptance by the plaintiff to whom it was rendered become an account stated so as to entitle this plaintiff to the credit balance shown in cash, when such effect is contrary to and in derogation of the express terms of a written contract existing between the plaintiff and defendants, and when it has the further effect of crediting plaintiff, who is entitled under the contract only to net *523profits, with book profits which to the knowledge of both plaintiff and defendants had been turned into losses by shrinkage in the inventory valúe of accounts receivable . on the basis of which the profits had been computed.

David Paine for appellant.

Harlan F. Stone, R. Randolph Hicks and Daniel R. Brenton for respondents.