151 Mich. 214 | Mich. | 1908
(after stating the facts). The most-important question arises upon the construction of the contract. The learned counsel for the defendant insists that the clause “I will undertake to dispose of approximately $100,000 of the preferred stock,” is an absolute agreement; that he failed to perform it, and therefore cannot recover for his services as treasurer. We think counsel in error. Plaintiff agreed to do two things, neither of which was dependent upon the performance of the other. He agreed to act as treasurer for one year for which he was to receive a monthly compensation. He also was to undertake to dispose of a certain amount of the stock. The disposal of the stock was certainly not a condition precedent to his appointment as treasurer and director and the performance of the duties which those two offices imposed upon him; otherwise the defendant would not have paid plaintiff monthly for six months. Furthermore, the correspondence between the parties clearly shows that plaintiff’s employment as treasurer was not understood to be dependent upon his disposal of the stock. Seymour v. Rolling Mills, 56 Mich. 117.
“The agreement consists of two contracts, severable and independent of each other, and have so been treated by the parties.”
It therefore becomes unnecessary to determine whether the word “undertake” imported an absolute agreement to sell, or simply a faithful endeavor on his part to sell. That plaintiff made faithful endeavors to sell the stock is established by the evidence. In these endeavors he was assisted by the manager of the defendant; but notwithstanding the efforts of both, no stock could be disposed of in the city of Detroit.
The contract was one of employment for a year as treasurer at a stated compensation, and plaintiff was subject to discharge only for cause. On November 1st another treasurer was appointed, and plaintiff notified that his successor had been elected. Mr. Matheson, the manager of the defendant, testified that technically plaintiff was the defendant’s treasurer as late as October. In fact he was the only treasurer defendant had and performed all the duties required of him.
• “I will be pleased to send you my resignation when the loans at The American Exchange National Bank at Detroit have been fully paid up, so as to relieve me of my indorsements, and upon receipt of the amount of my investment, viz., $2,500 in the stock of the Matheson Motor Oar Company.”
This offer was not accepted. There is nothing in this correspondence to indicate any discharge of the plaintiff as treasurer. Neither is there anything in the correspondence following until his discharge November 1st.
“Defendant disregarding its obligation, * * * neglected and refused to pay the plaintiff’s salary, although the plaintiff was at all times prepared and ready to continue to discharge the duties of the office of treasurer to which he had been elected.”
The declaration is not for services rendered, but for services he did not render but was ready and willing to perform. The special count sets forth the contract in full; that the plaintiff entered upon his duties; that he was paid to July 1, 1905;‘that he was at all times prepared and ready to continue to discharge the duties of the office; and its refusal to pay. Had plaintiff brought suit simply for work and labor performed, as was the case in Moore v. Nason, 48 Mich. 300, plaintiff could not have recovered for the last two months of the contract period.
Judgment affirmed.