152 Wis. 453 | Wis. | 1913
Whitney Bros. Company is a stock corporation organized under tbe laws of Wisconsin with a nominal capital of $200,000, divided into 8,000 shares of tbe face value of $25 per share. Its headquarters are in tbe city of Superior and its business consists of general contracting, dredging, pile-driving, dock building, towing, lightering, etc. Tbe corporation succeeded to tbe property and business of a copartnership, and tbe plaintiff was an employee of said co-
“We, the payees named in the above note, do hereby agree that if the above named W. W. Whitney continues in the service of Whitney Bros. Company, by whom he is now employed as foreman, for the period of five years and shall pay interest on the aforesaid note during that time, at the end of said period the said note shall be deemed to be paid in full, and shall be surrendered together with the stock thereby hypothe-cated to the said maker of said note. We further agree that if, at any time before the said five-year period shall elapse, the said maker of said note shall desire to quit and withdraw from the position he holds in the said corporation of Whitney Bros. Company, he may do so, and surrender his said stock to us and receive back the aforesaid note. He shall be entitled to receive on his stock all dividends which the same shall have earned up to the time of such surrender of said stock.”
On June 15, 1904, the plaintiff quit the employment of the Whitney Bros. Company voluntarily. On January 1, 1905, he again entered its service and continued in such service until February 23, 1907, when he again quit said service, and during all the period of his service there was paid to him by the corporation a salary of $100 per month. He never paid any part of the said note or the interest thereon nor gave any indication of his intention to surrender his stock and receive back the note. March 1, 1909, a dividend of forty per cent.
Error is assigned because the circuit court refused to find that the plaintiff went to work pursuant to the contract. We cannot see that that finding would make any difference in the result. We may assume that he did. But the contract consisted of the written contract relative to the purchase of stock and the oral contract of the corporation to pay him $100 per month for his work. The first was between the plaintiff and the two Whitneys, the second between the plaintiff and the corporation. The case of Strait v. Northwestern S. & I. Works, 148 Wis. 254, 134 N. W. 387, is distinguishable in that there the consideration for the purchase of the stock went to the corporation and the latter was to issue its shares in payment. Here the written contract is wholly collateral to the contract between plaintiff and the corporation. The written contract for purchase of stock provided for the manner of performance. It might be performed by payment of $5,000 with interest at six per cent., or it might be performed by continuing in the service of Whitney Bros. Company as foreman for the period of five years and paying interest on the $5,000 during that time. It also provided what should be done in case the plaintiff quit the service of the corporation before five years. The plaintiff failed to perform in either manner, and
Tbe appellant’s contention is tbat be was entitled to sucb proportion of tbe $5,000 as tbe time of bis service bore to tbe five years wbicb be agreed to serve, and was also entitled to tbe value of tbe stock dividend instead of tbe stock dividend itself, and tbat tbis sum should be set off against tbe amount of $5,000 and interest and tbe plaintiff required to pay only tbis difference in order to redeem. We think tbis would be making a contract between tbe parties wbicb they never assented to.
There was no agreement to give plaintiff $5,000 or any other sum of money beyond bis salary of $100 per month. Tbe agreement was to give bim 200 shares of corporate stock, wbicb be might pay for with $5,000 and interest at six per cent per annum up to tbe time of payment or by five years’ service to tbe corporation as foreman, be paying also $300 a year interest. He actually worked for tbe corporation only about two years and five months, and tbe whole period from tbe time be first commenced to work for tbe corporation until be finally quit was about three years. Tbe first contract, viz. that be might have tbe stock by paying tbe $5,000 note and interest, arises from tbe execution and delivery of the note, tbe pledge of the stock certificate for 200 shares as collateral thereto, and tbe provision in tbe writing of even date that upon payment of tbe note tbe transfer of tbe shares to tbe pledgee should be null and void. Tbe second contract obligation is independent of tbis and presents tbe case of two shareholders in a corporation contracting to make over to an
Hildebrand v. American F. A. Co. 109 Wis. 171, 85 N. W. 268, is not in point. That case declares and applies a rule applicable to the relation of master and servant, which relation does not exist between the plaintiff and the payees in his note. There the contract did not expressly provide what the rights of the plaintiff should be in case he quit the service, here it does. By the terms of this contract performance on the part of the plaintiff by continuing in the corporate employment for five years must precede performance on the part of the shareholders, and such performance goes to the consideration upon which the promise of the shareholder defendants rests. The loss to these defendants by breach on the part of the plaintiff is almost impossible of ascertainment. It does not follow at all that where a foreman engages for five years’ continuous service for a fixed sum that each year of the five is worth one fifth of that sum. Experience and cumulative effort and continued policy count for much, and the difference in the value of the services of a foreman who has a stake in the result and those of one who has no interest beyond his salary is well recognized. This contract to transfer the shares in consideration of five years’ services to the corporation is wholly collateral to the contract of service, is not between master and servant, and falls within and is governed by the rule of Collat v. Gottschalk, 142 Wis. 503, 125 N. W. 957, and the agreement to make over the shares to plaintiff is contingent and dependent upon full and complete performance by the plaintiff. Part performance is insufficient to confer any rights upon him. The contract itself expressly recognizes this. We find no waiver of this full performance on the part of the defendants.
Second. The plaintiff should not be allowed to redeem from
By the Court. — Judgment affirmed.