175 Wis. 518 | Wis. | 1921
Whether the testimbny_of defendant or Mueller as to the exact language used in the interview between them on July 26th when the relationship of employer and employee terminated be considered as the more correct recollection of what actually was said, we deem entirely immaterial.
From defendant’s own testimony on direct and cross-examination the following facts appear: Defendant was the trusted employee of plaintiff, holding an important position of an executive nature as foreman or shop superintendent, continuing from the same position and situation that he had occupied prior to February 1, 1916, with the M. F. Co. As such foreman or superintendent he was at all times under the direction and supervision of Mr. Mueller, the secretary and general manager of the plaintiff. Repeatedly from the fall of 1916, when defendant had stated to Mr. Mueller that he had formed some idea as to a design for a smokeless furnace,
From these and other undisputed facts it must be held that the request made by Mr. Mueller that defendant should devote the remainder of his time and attention while in plaintiff’s employ to that express purpose was important and material. It involved no departure from the high grade of service which defendant had been rendering and for which he had been employed. Whether or not such requested service could be brought to a successful or practical termination within the period still left of defendant’s employment was a matter of concern to plaintiff and not to defendant. Under such a situation there is no escape from the cbnclusion as a matter of law that defendant’s wilful refusal to enter upon such required service was unjustifiable and a breach of his contract duty and obligation. If what followed be considered as a discharge of defendant by plaintiff it was justified. If it be considered a reason or excuse for defendant’s ceasing to render service it was insufficient. Such conclusion is supported by the decisions. Green v. Somers, 163 Wis. 96, 100, 157 N. W. 529; Green Bay F. Co. v. Jorgensen, 165 Wis. 548, 552, 163 N. W. 142; In re Milwaukee M. Co. 246 Fed. 671, L. R. A. 1918C, 1027 and note p. 1030; May v. New York M. P. Corp. (Cal.) 187 Pac. 785, 788; note in 24 L. R. A. n. s. 814.
The defendant was not entitled to recover under his counterclaim. The forty-nine or fifty shares of stock of the M. F. Co. for which upon the undisputed record he had ostensibly subscribed could not have been lawfully issued to him and would have been void under the provisions of sec. 1753, Stats., except issued in consideration of money or labor or property at its true money value actually received by the corporation to the par value. Considering his own evidence alone, including his examination under sec. 4096, Stats., prior to the trial in the civil court, and which, although re
By the Court. — Judgment affirmed.