176 Mich. 569 | Mich. | 1913
A reference to the declaration and bill of particulars in this case shows that the action was in assumpsit to recover a balance claimed to be due plaintiff for salary due from the defendant by reason of a wrongful discharge of plaintiff from service. The balance claimed covered the period from March 15, 1910, to November 11, 1910, according to the terms of an alleged contract entered into whereby plaintiff was to be employed for the period of one year from and after November 11, 1909 (upon the trial amended to read November 12, 1909), at the rate of $1,500 per year. Also for money claimed to be due plaintiff from defendant for supplying basic mixture and manufacturing manganese bronze according to the terms of a certain contract. There was originally a further claim for certain royalties due the plaintiff on certain patents under a written contract between the parties, but during the trial, after a considerable colloquy between the court and counsel, all of the last-named claim was withdrawn from the consideration of the jury; the court in the presence of the jury saying:
“Then, by consent, all the testimony in_ the case given by the plaintiff in behalf of the plaintiff and on behalf of the defendant relating to the issue of patents is stricken out, gentlemen of the jury, and withdrawn from your consideration, and you are to endeavor to remove it from your minds as if it had not been introduced at all.”
It appears that for a number of years prior to November, 1909, the plaintiff and his son were the principal owners of the Galvin Brass Company, engaged in manufacturing automobile windshields, at Detroit. Albert S. Keen and two others were copartners manufacturing automobile steering wheels.
On November 4, 1909, a written agreement was signed by the plaintiff and the members of the said copartnership. This agreement provided for the formation of a corporation to be known as the Detroit Steering Wheel & Windshield Company on or before January 1, 1910. It also provided that the plaintiff should be elected vice president of the company and should have charge of its foundry. Under date of November 11, 1909, the articles of incorporation of the defendant company were signed and acknowledged. They were filed with the secretary of State November 13, 1909, and with the county clerk November 16, 1909. Of the 5,000 shares of stock subscribed for, Albert S. Keen held individually 1,750 and as trustee 1,000 shares, and he was elected the president of the company. It was the claim of the plaintiff, and he gave evidence tending to show, that Albert S. Keen from the start handled the business of the corporation and made the contracts. There is some question whether the articles of incorporation were in fact executed on November 11th or 12th.
The claim of the plaintiff upon the trial was that on November 12, 1909, and after the articles were executed, and after Mr. Keen had been elected the president, a verbal contract of employment of plaintiff 'was entered into with defendant company, acting by and through Mr. Keen, its president, by the terms of which plaintiff was to have charge of defendant’s foundry for one year with a salary of $1,500; that
The case was submitted to the jury upon a full and fair charge, and a verdict was rendered for the plaintiff for the remainder of the year’s salary, amounting to $1,046.46; the jury having disallowed the claim for manganese. There was a motion for a new trial which was denied, which denial was excepted to, and the defendant has brought the case here for review upon writ of error.
The statement of the facts in appellant’s brief is very unsatisfactory, and there seems to have been no attempt to comply with rule 40. We have, however, examined the record and shall consider the three principal questions in the case.
Under the assignments of error based upon the refusal of the court to direct a verdict for the defendant at the conclusion of plaintiff’s testimony and at the conclusion of the entire case, counsel for appellant say:
“These assignments raise the main question in this case as to the oral agreements being within the statute of frauds, as to the authority of the officer of the defendant company to make the agreements, and as to the validity of the agreements because made before the complete organization of the company. There are three verbal or oral agreements testified to by plaintiff and denied by defendant, one on November 4, 1909, another November 11, 1909, and another on November 12, 1909. The written agreement of No*573 vember 4, 1909, provided for the employment of the plaintiff generally but is wholly silent as to the salary or term of employment.”
1. We have already stated that the agreement of November 4, 1909, made before the articles of incorporation were executed, and made not by the defendant but by the proposed incorporators, provided that the plaintiff should have charge of the foundry. We agree with counsel that it was entirely silent as to salary or term of employment. We do not understand that the plaintiff relies upon this agreement or upon any oral agreement of that date for recovery here, but upon an oral agreement claimed to have been made on November 11th or 12th (the exact date being indefinite) and after the articles were executed and after Mr. Keen was elected president. Notwithstanding any agreement which may have existed between the incorporators, it is difficult to understand why a subsequent valid oral agreement may not have been made with the defendant. That was the question which the court submitted to the jury. The court in its charge said:
“It is the plaintiff’s claim that he had an oral contract of employment for the term of one year, beginning November 12, 1909, at a fixed sum of $1,500 a year. And it is his claim that, that contract having been entered into, he was improperly discharged on the 21st day of March, 1910.”
We cannot agree with the contention that the statute of frauds has any application here. The only agreement submitted to the jury was one to be performed within one year.
2. Was there authority in Mr. Keen, under the circumstances, to make the agreement claimed for the defendant? The record is silent as to any action on the subject by the directors. The plaintiff claimed and testified that from the first Mr. Keen took charge of and handled the business and made the contracts
It may also be said that the acts of Mr. Keen were ratified by the directors and officers. We have examined the cases cited by appellant, and do not think that they are controlling of the instant case.
3. Was the claimed contract made before the complete organization of the defendant company? The articles of incorporation are not contained in the record. We understand, however, that the defendant was organized under the provisions of Act No. 232, Pub. Acts 1903 (4 How. Stat. [2d Ed.] § 9532 et seq.). Section 9 of that act provides as follows:
“Before any corporation, organized under this act to operate in this State, shall commence business, the president shall cause the articles of association to be recorded, at the expense of said corporation, in the office of the secretary of State of this State, and in the office of the county clerk of the county in which such operations are to be carried on.”
We are of opinion that what we said and held in Newcomb-Endicott Co. v. Fee, 167 Mich. 574 (133 N. W. 540), is applicable here, and that this question is governed by that case.
We have examined the other assignments of error. Many of them are not based upon any exception. The charge of the court sufficiently covered such of defendant’s requests to charge as correctly stated the
We find no prejudicial error in the record, and the judgment of the circuit court is affirmed.
