66 W. Va. 204 | W. Va. | 1909
The court below sustained defendant’s demurrer to plaintiff’s declaration, and he not desiring to amend, the judgment complained of, that he take nothing by his suit and that defendant go thereof without day, was pronounced.
The point is not made that the declaration is not good in form. It seems to be in the form prescribed by approved precedents for declarations in aisswnpsit for discharging a servant. Gregory’s Forms Anno. No. 54, and cases cited.
The only question presented by the demurrer and argued here is, whether one employed by a corporation, for a definite period, and for fixed compensation, to serve in the capacity of bookkeeper, is within the meaning of section 2281, Code 1906, an officer or agent of such corporation, holding "his place during the pleasure of the board of directors, and removable without cause by such board without -liability upon the corporation for breach of the contract.
That section provides that, “The board of directors may, subject to the provisions of law and the by-laws, appoint such-officers and agents of the corporation as they may deem proper”, who “ shall hold their places during- the pleasure of the board.” In Darrah v. Wheeling Ice and Storage Co., 50 W. Va. 417, relied on by the defendant, it was held, that the board of directors cannot appoint such officer or agent so as to bind the corporation to keep him in such position for a. definite, fixed period; that such officer is .bound to know by the law or by the by-laws if they so provide, that he is removable at the pleasure of the board, and that a contract for a definite period is ultra vires and without authority.The Durrah Case involved the employment of a secretary and -treasurer, an officer provided by statute-and the bj'-laws of the corporation. It is insisted
It is argued, however, that the case of Hunter v. Insurance Co., 26 La. Anna. 13, cited with approval in Darrah v. Ice Co., supra, a bookkeeper’s case, is to the contrary. The point of the syllabus in that case is: “The officer of a company must be presumed to know its by-laws adopted before his appointment, and is bound by them as to his tenure of office. They have become the law between himself and his employers. By one of their by-laws the defendants had reserved the right to remove their officers at pleasure. Plaintiff is an officer in the sense of the said by-law, and therefore can not complain.” The plaintiff in that case was employed as a so called “Premium ledger bookkeeper”. It does not appear from the report of the case what duties m'ay have been prescribed for him by the by-laws, if any. He was there treated as an officer, however, and as applied to an officer the principle enunciated was applicable and properly applied in Darrah v. Ice Co. But that principle would certainly not be applicable in this state in the case of a mere servant, not an officer or agent within the meaning of the authorities to which we have referred; for it has been held in this and in other states, that while the power and authority to remove or discharge a servant of a corporation exists, the corporation is nevertheless liable in damages for a breach of the contract with such servant. Rhoads v. Railway Co. 49 W. Va. 494; Maury v. C. & C. R. R. Co., 27 Grat. 698; Crescent Co. v. Eynon, 95 Va. 151; Willoughby v. Thomas, 24 Grat. 521.
It does not seem necessary to allege in a declaration of this character, and the point is not made, that the plaintiff has not alleged he could not have saved himself from the consequences of the defendant’s default by obtaining work elsewhere. This is matter of defense to be pleaded. 13 Ency. Pl. & Prac. 916.
For these reasons, we are of opinion that the court erred in giving judgment for the defendant on the demurrer, and that the judgment below should be reversed.
Reversed.