Emery v. . Pease
New York Court of Appeals
Appeal from the Supreme Court. The complaint set out an agreement between the plaintiff and defendant, by which the former was acting as a superintendent of a manufactory of agricultural implements, and was to receive, in addition to a fixed salary, half the net profits of the business. It was provided that the net profits were to be ascertained by deducting from the gross receipts various enumerated charges and expenses, and all losses in the business, including bad debts.
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Appeal from the Supreme Court. The complaint set out an agreement between the plaintiff and defendant, by which the former was acting as a superintendent of a manufactory of agricultural implements, and was to receive, in addition to a fixed salary, half the net profits of the business. It was provided that the net profits were to be ascertained by deducting from the gross receipts various enumerated charges and expenses, and all losses in the business, including bad debts. The plaintiff was to keep the books, and at the end of each year an accurate account was to be taken of the stock and…
1Opinion of the CourtComstock, J.
Regarding the suit as an action at law according to the distinction between legal and equitable remedies which formerly prevailed, we think the Supreme Court were right.in holding that it could not be maintained upon the facts averred in the complaint. The pleader has set forth some matters of evidence having perhaps a slight tendency to prove that the account had been taken and the balance due to the plaintiff ascertained by the parties according to the principles of the agreement between them. But he seems carefully to have avoided the very conclusion of fact which alone would justify a…
2Cited by67 opinions
- Grattan v. . Metropolitan Life Ins. Co.New York Court of Appeals · 1880
- Conaughty v. . NicholsNew York Court of Appeals · 1870
- Mitchell v. . ThorneNew York Court of Appeals · 1892
- Wright v. . WrightNew York Court of Appeals · 1873
- Arthur v. . Homestead Fire Ins. Co.New York Court of Appeals · 1879
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