Facts
The plaintiff, Wilhelm Josef Zweidler, proprietor of the sole proprietorship ODZ-Systeme, Organisation, Datenverarbeitung, had employed the defendant, Bodo Dick, as an IT organizer on 22 October 1988. According to the employment contract, the defendant received a company car, a BMW 850i, which the plaintiff had purchased from AMI-Auto-Center N20 AG and financed through Autisca Leasing AG. The employment contract stipulated that the defendant had to "financially" take over the car upon termination of the employment relationship. When the plaintiff terminated the defendant on 24 June 1992, the latter refused to take over the car. The plaintiff then demanded that the defendant take over the car in accordance with the employment contract. The defendant brought the car to AMI-Auto-Center N20 AG on 29 September 1992, where it was finally sold on 29 December 1993. Since the plaintiff was no longer in possession of the vehicle, Autisca Leasing AG terminated the leasing contract prematurely and agreed with the plaintiff to convert the debt into a loan debt, which the plaintiff repaid in instalments. The plaintiff then sued the defendant for payment of CHF 196,116.25 plus interest as compensation for the expenses incurred in repaying the debt to Autisca Leasing AG. The District Court and the FJA of the Canton of Zurich dismissed the claim.Considerations
The CO upheld the judgment of the FJA. It stated that the res judicata effect of the previous judgment in the denial proceedings only covered the part of the disputed total claim that was set off at the time, but did not prejudice the assessment of the remaining claim. Furthermore, the CO qualified the leasing contract as a hire-purchase agreement,…