(dissenting).
I see no legal reason for the remand of this case for an accounting. Indeed, it appears to be simply a suit for the balance due by a consignment distributor of petroleum products on his account with plaintiff.
Plaintiff has made full proof of defendant’s indebtedness in a total amount of $11,883.50, as shown by the itemized statement set forth in the majority opinion herein (No. 43,072). Actually, the accuracy and existence of the indebtedness is not seriously questioned by defendant. His sole defense appears to be an offense, i. e., a re-conventional demand in which he vaguely claims that plaintiff is indebted to him in the sum of $200,000 for its “arbitrary cancellation and wanton disregard” of his rights under the agreement.
This pleading, which does not set forth any facts and, therefore, fails to state a cause of action, is the vehicle by which defendant was permitted to adduce his real (but not alleged) and, in my opinion, wholly untenable claim that plaintiff is indebted to him because its credit manager, Guibet, by use of some sort of duress, forced him to lend or give Guibet money so that Guibet could pay his personal gambling losses. To say that Guibet’s employer (the plaintiff) is responsible to this defendant for his loans or gifts to Guibet (as to which plaintiff’s officials were not only uninformed but from whom, according to defendant’s own admission, knowledge was deliberately withheld) is, to put it mildly, astounding to me.
Yet, that is exactly what the majority has concluded in this case, i. e., that, since defendant paid Guibet personally $35,400 to cover his gambling losses, defendant is entitled to reimbursement from plaintiff because Guibet was credit manager for plaintiff and, having been allowed to manage its affairs, it is to be implied that he was acting for it.
It seems to me that, even if the doctrine of implied authority of an agency were stretched beyond its normal limits, it could not be fitted to the facts of this case for, here, it is admitted that knowledge of the loans to Guibet were concealed from the officials of the company for years. It was not until defendant’s financial condition had reached the breaking point, and he could no longer continue his secret arrangement with Guibet, that he divulged his alleged advances to the credit manager.
*242Although the jury and the majority apparently accept defendant’s story of his magnanimity, to which he attributes his financial downfall, at face value and place the entire blame on Guibet, I suggest that ■defendant was receiving consideration from Guibet for the loans in the form of credit extensions far beyond his capacity to pay.
I respectfully dissent.