Overton v. Vita-Food Corp.

VALLÉE, J.

Appeal by defendant, The Vita-Food Corporation, from a judgment for plaintiff in an action to recover compensation for services rendered under the terms of a written contract. The action was tried by the court without a jury.

On February 5, 1942, appellant and respondent entered into a written contract by which appellant employed respondent to serve as its president from January 1, 1942, to December 31, 1946. The contract provided that it was understood that respondent would be engaged primarily in the practice of law but that he should devote as much time as might be necessary or proper in the interests of the corporation and perform all duties and services as the managing director or the board of directors might direct from time to time and that he should receive as compensation for his services a salary of $250 a month. It contained the following proviso: “Provided, however, that the said employment shall be totally suspended and no services shall be rendered by or required of Overton and the salary of Overton shall not accrue, become

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owing or due for the period or periods during which any or all of the following occur: The plant or plants of the Corporation are out of production from causes incident to or resulting from the present and prospective emergent conditions, or other causes beyond the reasonable control of the Corporation, such as, but without limitation to, transportation delays or interruptions, strikes, and acts of God. The plant or plants of the Corporation shall be deemed out of production during any month if the production in such month does not exceed forty per cent (40%) of one-third (%) of the actual production during the last three (3) months of 1941; laboratory and research work are not and shall not be considered as contributing to or being a part of production. ’ ’

The complaint alleged the contract; that respondent performed dhe services required by the contract to the end of 1946; that he had not been paid for 1945 or 1946, except $500 paid in 1946, and that $5,500 was unpaid. The answer alleged that the plants of appellant were out of production within the meaning of the contract in 1945 and 1946, and that, therefore, no salary was due respondent.

The court found the allegations of the complaint true except it found that $125 was paid in 1945. It also found: 1. “ That at no time during the term of such written agreement was or were any plant or plants of Vita-Food ‘out of production’ within the meaning or effect of said written agreement; nor at any time during such term was any plant or plants of Vita-Food ‘out of production’ by reason of ‘emergent conditions,’ or otherwise, within the meaning or effect of said written agreement (Clause 2).” 2. “That on or about November 30, 1942, Vita-Food sold to another entity a certain trade-mark, and right to manufacture products offered to the market under such trade-mark, for a consideration of Two Hundred Thousand ($200,000.00) Dollars; that all of such consideration has been paid; that such sale was not a forced or involuntary sale; that by so selling Vita-Food voluntarily placed it out of its power to meet the provisions of the so-called ‘production clause’ (Clause 2) set forth in said written agreement; and that at all times during the years 1945 and 1946 Vita-Food was financially able to pay plaintiff the salary or compensation agreed to be paid him under said written agreement. ” 3. “. . . that Vita-Food requested of, and accepted from, plaintiff the services rendered by plaintiff during such years 1945 and 1946, and accepted the benefits thereof; and that Vita-Food