214 Wis. 319 | Wis. | 1934
The following opinion was filed January 9, 1934:
The defendant contends here very vigorously that the misconduct of the plaintiff during the year 1927 was of such a character as to require a court to deny him any recovery for any part of the profits of the business derived from the operation of the corporation. The law respecting the right of an agent or servant to compensation where the agent or servant has been guilty of disloyalty or insubordination is stated in 2 Restatement of the Law of Agency, p. 1102, sec. 469, as follows:
“An agent is entitled to no compensation for conduct which is disobedient or is a breach of his duty of loyalty; such conduct, if constituting a wilful and deliberate breach of his contract of service, disentitles him to compensation for even properly performed services for which no compensation is apportioned.”
On behalf of the defendant it is further contended that the finding of the referee with respect to the terms of the contract made between plaintiff and John A. Blum and Paul L. Blum for the defendant is against the great weight and clear preponderance of the evidence. All parties agreed that the plaintiff was to have one-third of something. The disagreement arises as to the basis upon which the one-third was to be computed. The referee found that it was to be one-third of the net profits to be figured and divided yearly. The allegation in the complaint is that the defendant was to pay a sum equal to an undivided one-third of the yearly profits. The allegation in the answer is that the plaintiff was to have one-third of the net operating profits which would be available out of dividends. When the plaintiff was called as a witness he testified:
“The conversation and agreement was that they were going to incorporate and employ me as manager and secretary and pay me $25 per week and one-third of the profits. There was not a word said as to what the profits would con*325 sist of at that time. Nothing was said about dividends. It was said that the profits were to be net profits. . . . I never had any conversation with John Blum after the original conversation in which I referred to .the one-third allowance I was to receive until shortly before we closed the business September 25, 1927.”
Upon the trial Paul Blum testified:
“In addition "to the $25 we agreed to pay him we would take six per cent interest on our investment and the balance of the operating earnings or dividends we would divide equally, one-third each. During the years that followed we did not compute each year the amount of money we had in the business and take six per cent, interest.”
John Blum testified that he was not present at the time the arrangement was made in regard to one-third of the profits. Near the close of the trial the plaintiff was recalled and testified:
“When I made the agreement with Paul and John Blum, whereby they were to pay me one-third of the profits, it was the understanding or agreement that the division was to be yearly. The agreement was that they were to compute the earnings each year and pay me my share out of that. I asked them for an adjustment on that basis several times.”
This is the only testimony which we are able to find in the record which sustains the finding of the referee to the effect that profits were to be computed yearly. The finding that the profits were to be computed on a yearly basis is so opposed to the plaintiff’s testimony given upon his direct examination and to all the circumstances and inferences to be drawn from the conduct of the parties that it is considered to be against the great weight and clear preponderance of the evidence. While plaintiff testified that he had asked for an adjustment on that basis several times, it,appears from his other testimony that he had not asked for an accounting prior to January 1, 1927. At or about that time he had asked for his one-third of the stock, which clearly
By the Court. — The judgment is reversed, with directions to dismiss plaintiff’s complaint and enter judgment in favor of the defendant upon its counterclaim for $1,033.20 with interest and costs.
A motion for a rehearing was denied, with $25 costs, on March 6, 1934.