The contract in question is dated August 4, 1900. In it the plaintiff is called the vendor, and the defendant the purchaser. By the terms of the contract the vendor assigned
It appeared in evidence that at the time of the signing of the contract Knight was president of the company and had been connected with it about fifteen years as manager and president. On June 4, 1900, the directors of the plaintiff company elected its officers for the ensuing year, and among them Knight, as president and manager. There was evidence also that Knight sold the manufactures of the company, handled the money, paid the men, looked after the factory and' attended to the entire business; and further that at the time of the transfer Knight was receiving a salary of $2,000 a year.
The plaintiff offered to show that upon November 20, 1900, Knight brought an action against the plaintiff for salary alleged to have accrued to him after the transfer, for the months of August, September, October and part of November, at the rate of $116.67 per month. The company did not defend the action, and Knight recovered judgment, which judgment was paid by the company. The plaintiff further offered to show that in March, 1901, a further sum was paid by the company to Knight in satisfaction of a claim he made against the company for the balance of the year for which he contended that his contract
We are of opinion that the ruling was right. The contract before us transferred to the defendant the machinery, stock in trade, fixtures and book debts. It does not appear that Knight rendered any service to the defendant or that he was expected to do so. Nothing was due to him from the plaintiff when the transfer was made. The contention of the plaintiff is that the liability of the defendant arises under the last clause of the contract, “ and also all interest, costs, expenses, losses, claims and demands on account of the same debts, contracts and engagements.” The president of a corporation, as an officer, is not ipso faoto entitled to a salary or to a compensation, and so far as any inference is to be drawn in regard to it, the inference is that the salary was paid to him as manager and not as president. The plaintiff disposed of all its property at the date of the contract, and after that, so far as appears, had nothing to manage. There is nothing to show that the plaintiff was not at liberty to sell its property and wind up its business at any time. Electing a man to an office is not ordinarily to make a contract with him for a stated time. There is nothing to show that the corporation agreed with Knight to continue to carry on business through a year, or to retain him under a salary as manager after it ceased to have anything to manage. The evidence did' not go far enough.
There is also another ground which is conclusive against the plaintiff. Even if the plaintiff made a contract with Knight, which it broke by the sale of its property, so that it would be liable to him for such breach, the measure of damages would not be the salary promised, but would be the difference between the salary and what he could have earned in some other occupation. See 1 Sedg. Dam. (8th ed.) §§ 206-208; Mayne, Dam. (7th ed.) 244, 245. The plaintiff put in no evidence on this point, and there is nothing to show that Knight did not earn more in some other occupation.
The judgment in the action brought by Knight against the plaintiff was not binding on the defendant, in the absence of a notice to come in and defend. No such notice having been given, it stood merely as a payment; and to make it material the plain
Exceptions overruled.