Facts
Rudishauser AG, a one-man company, was managed by Paul Rudishauser. The defendant Alfred Stocker acted as the auditor. As early as 1951, the company's balance sheet showed a passive balance of around CHF 131,000. Despite this over-indebtedness, the management failed to notify the judge as required by Art. 725 para. 3 CO. The defendant as the auditor also failed to urge the management to do so or to convene the general meeting himself and inform the judge.
In the following years until 1955, the company's financial situation deteriorated further, without the defendant taking the legally required steps. It was not until October 1955 that a composition agreement with assignment of assets was approved at the company's request.
Rudishauser AG in composition liquidation sued the defendant Stocker for damages, as he had violated his duties as an auditor and thereby damaged the company or its creditors.
Considerations
The Federal Court ruled that the defendant was still to be regarded as the company's auditor even after the expiration of the term of office applicable for the 1952 financial year. The term of office of an auditor elected for one year is automatically extended if no general meeting is held to re-elect the auditor.
The court considers it proven that the defendant has violated his duties as an auditor in several respects. In particular, he…