Pece v. Tama Trading Co.

McCOMB, J.

From a judgment in favor of defendant after trial before the court without a jury in an action to recover a sum alleged to be due as salary plaintiff appeals.

Viewing the evidence most favorable to defendant

(Patten & Davies Lbr. Co.

v.

McConville,

219 Cal. 161, 164 [25 Pac. (2d) 429]), the essential facts are these:

The salary of plaintiff, an employee and director of defendant corporation, was fixed by the directors at meetings when he was present by resolutions for which he voted, of which the following are typical:

. “Resolution that directors Pincin, Baldo and Pece receive as compensation for their services to the company the sum of $250.00 commencing January, 1932, payable $125.00 per month, balance to be paid at the end of six months; but, in the event there is a shortage of cash on carrying on the business the company may execute and deliver to them respectively a promissory note .payable not to exceed six months from the date thereof for such balance as may then remain unpaid. ’ ’

“Present all directors. President Pincin in the chair. On motion unanimously voted the same officers as have served for the past year were reelected for the coming year, except that director del Favero was elected treasurer in place of director Pece. On motion, duly made, seconded and carried it was resolved that all employees shall remain in their present employment and directors Pincin, Baldo, Pece be retained, the same being president, secretary, vice president-treasurer, and shall continue to receive the same salaries as in the past, to-wit, the sum of $250.00 per month payable $125.00 per month in cash and the balance payable at the end of the year, provided in any event that no such salaries are to be paid or credited in excess of the net earnings of the corporation for any given year. In other words, if the net earnings of the corporation are not sufficient to cover the full salaries herein fixed, such salaries shall be reduced proportionately to come within the net income of the corporation.”

[221]

“On motion, duly carried, the following resolution was adopted: Resolved that the salary of John Allera shall be $156.25 per month, payable $125.00 in cash each month, the balance at the end of the year on the same conditions as the foregoing resolution. On motion duly carried, following resolution duly adopted: Resolved that the salary of Frank Pece be $287.25 per month, payable $125.00 in cash each month and balance at the end of the year, provided all salaries for all employees shall not exceed the net income of the corporation, and in that event the salaries to be prorated so as not to exceed the net income. ’ ’