56 N.Y.S. 33 | N.Y. App. Div. | 1899
The single question presented on this appeal relates to the construction of the agreement made by the parties. The plaintiff insists that the agreement was not only that his salary should be paid while he rendered services to the corporation, but that he ■should be employed for two years and paid a salary of $5,000 per year during that period. The defendants claim that it was merely an understanding that they would obtain for the plaintiff his appointment as engineer, and would guarantee punctual payment to him of his salary during the period named, and that the conditions that he ■should render services and that the company should continue to exist ■or do business were necessarily implied.
In the plaintiff’s proposition of October 11, 1893, wherein the 4,500 shares were offered to be sold to the defendants, the consideration was not only the cash to be paid, but the further consideration thus expressed: “ Provided I am paid an annual salary for two years of five thousand ($5,000) dollars per annum, in equal monthly installments, as a vice-president or consulting engineer of the Kinsman Block System Company.” To such proposition we find, over the signature of the defendants, the following: “We accept the above proposition October 12, 1893.” On the day after this proposition was made, a more formal agreement was entered into, the second recital therein being as follows: “ Whereas, the parties to said agreement have mutually agreed to cancel the same, except so far as said agreement refers to the American and foreign patents of said Kinsman, and to that end a proposition, bearing date October 11th, 1893, was made by said Kinsman to Harvey Fisk & Sons, which proposition was accepted by them on October —, 1893. Now, therefore, in consideration,” etc.
We think that not alone upon the language employed, but on the other facts appearing, this case is clearly to be distinguished from Lorillard v. Clyde (142 N. Y. 456); De Luka v. Goodwin (Id. 194) and People v. Globe Mutual Life Lns. Co. (91 id. 174). In the Lorillard case the parties had entered into an agreement to combine their business and transfer the same to a corporation, the defendants to have the management of the business and to guarantee to the plaintiff a dividend of not less than seven per cent upon his shares
Father more we think it would be both inequitable and unjust to import into the agreement an implied condition contrary to the meaning and intent of the parties, and thus enable the defendants, after obtaining the control of the corporation and its management, to apply for and secure the appointment of a receiver on the allegation of insolvency, and to use this as a ground for refusing to comply with an agreement which in effect called upon them, as a consideration for the delivery of the stock, to pay $10,000 in monthly installments covering a period of two years. That the payment of such sum was what the plaintiff desired to secure and the defendants agreed to pay as the consideration for the stock, is evident from the character of the employment which the defendant was to obtain. The agreement did not specify that he was to render any particular services, but provided that he was to be appointed as the vice-president or consulting engineer, which necessarily excludes the idea that he was to have his whole time continuously employed with the details of the company during the period, as a condition precedent to his right to receive the stipulated sum.
Having reached the conclusion that the court below erred in its
Van Beünt, F. J., Barrett, Rumsey and Fatterson, JJ., concurred.
Judgment reversed, -new trial ordered, costs to appellant to abide event.