The opinion
R.ICE, P. J.,
concurring:
I concur with Judge Pouter in the conclusion, and for the reasons stated by him, that it does not clearly appear in the affidavit of defense that the president had not the authority to make the contract in question; but even if that fact were alleged with sufficient certainty I would still affirm the judgment of the court below.
1. It is alleged and not denied that the plaintiff • was employed by the president of the defendant company for one year, beginning April 1, 1899, at a salary of $150 per month.
2. It is alleged in the statement that he continued in the employment of the company until the time of bringing suit (December, 1899), and rendered the services for which he was employed. In the first affidavit there was no denial of this allegation, nor is there any plain and unequivocal denial of it in the second affidavit. The allegation by the secretary that he was told by the president on September 20, 1899, that he had discharged the plaintiff is not such an averment of the discharge of the plaintiff as the defendant might have made and ought to have made, if the fact be as its counsel now contends. The further allegation that the plaintiff was notified of the discharge is silent as to the time and manner when and in which this notice was given.
3. On three different occasions, viz: on May 9, June 14, and July 5, 1899, the plaintiff was paid $150. This was the exact amount of his salary under the alleged contract for the month preceding each payment. If the payments were made through mistake of fact, or if the increase of the monthly sum was intended as a payment in advance, it would have been *326 easy to say so. The vague and unsatisfactory explanation of these significant acts vouchsafed in the affidavit of defense does not, in my opinion, destroy their effect as a recognition of the fact that his monthly salary had been increased. We have then a case where it clearly appears that the contract of employment was made, where it is alleged and not satisfactorily denied that the services contemplated by the contract were rendered, where it appears that the plaintiff was paid for a portion of the time at the rate stipulated for by the contract, and where no fraud or collusion is alleged. Nor is it alleged that the salary stipulated for was an unreasonable or exorbitant one for the services contemplated by the contract. It seems to me, therefore, that the case comes within the well-settled principle that where a corporation receives the benefits of a contract of this hind made by its president, it is estopped to deny his authority as a defense to an action for the services actually rendered. If the contract were wholly executory, and the plaintiff was suing for a breach of it, a different question would be presented.