Driscoll

Plaintiff corporation employed defendant as a salesman, the terms of his employment being formalized by a resolution of the board of directors. During the course of his employment defendant borrowed moneys from plaintiff in the sum of $4,575.76. Defendant executed a promissory note in the sum of $3,875 in favor of plaintiff representing the greater portion of the debt and the balance of $700.76 remained due on the open account books of the corporation.

Plaintiff brought suit on the note and account after termination of defendant’s employment. Defendant filed an answer and cross-complaint denying liability and alleging an infor *244 mal employment agreement, by the terms of which a “kitty” or “pot” had been agreed to be formed consisting, substantially, of 50 per cent of the earnings generated by defendant and the president of plaintiff corporation. From this fund all expenses of both of them allegedly would be paid, including defendant’s draw (from his 50 per cent only) and the balance would be divided equally between defendant and plaintiff’s president. The cross-complaint also alleged a common count, a cause of action for return of an automobile and a demand for an accounting.…