Corkran v. Patterson

Opinion by

Orlady, J.,

In this case the court below discharged a rule for judgment for want of a sufficient affidavit of defense, and also one for that part of the plaintiff’s claim as to which the affidavit was alleged to be insufficient.

The defendants were copartners as manufacturers of hammocks, etc., until August 1, 1904, when the firm was dissolved by Hohlfeld purchasing the interest of Patterson and continuing the same business. Patterson started a rival and similar business and secured the plaintiff in the same capacity in which he had acted for the old firm,- — that of a traveling salesman. This claim is for commissions, on sales made for the old firm, and Patterson in his separate affidavit of defense agrees that the plaintiff’s claim is correct. With this admission of record since February, 1905, the plaintiff has not made any move for judgment against him. Hohlfeld avers that this suit has been brought by agreement and in collusion with Patterson, so as to make him individually liable, and that Corkran was paid in full to the time of the dissolution of the old firm upon a schedule and statement made with Corkran’s knowledge to adjust the rights and liabilities of the parties. That by collusion between Corkran and Patterson, Hohlfeld was induced to pay to the plaintiff commissions on sales made after the dissolution of the firm. The defendant Hohlfeld avers that he is not indebted to the plaintiff in any sum whatsoever, and while the affidavit is not so specific in some respects as it should have been, the alleged combination of the plaintiff with the other defendant to secure a judgment against Hohlfeld, taken in connection with the facts that are sufficiently set out, fully justified the court in declining to make either of the rules absolute.

The judgment is affirmed.