Reno v. American Ice Machine Co.

LANGDON, P. J.

This is an appeal by the defendant from a judgment against it in an action brought to recover $891, alleged to be due to the plaintiff under facts revealed by the following findings, containing statements which were stipulated to be true:

On October 23, 1920, plaintiff and defendant entered into a contract by the terms of which plaintiff was employed as agent for the defendant in the sale, design, construction, and erection of its apparatus and in the direction and management of its business. The employment was to terminate at the pleasure of the board of directors of the defendant. Plaintiff was to be paid a salary of $49.50 a week. He subscribed to thirty-three shares of stock of defendant company at $100 a share, payable by a weekly credit on his salary account of $16.50. The agreement further provides that in the event of a termination of the agreement by either party, plaintiff should not offer for sale the stock so acquired by him to any third party without first offering the same to the stockholders of the company. The plaintiff entered the em

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ploy of defendant under the terms of said contract and continued in such employment until February 24, 1923, and duly and regularly performed all the terms of the contract by him to be performed. At the time the contract between the parties was entered into the defendant did not have a permit from the commissioner of corporations of this state to sell or dispose of its capital stock as required by the Corporate Securities Act. The defendant withheld from the salary of plaintiff $16.50 weekly during the period of employment, which sums aggregated $891 at the date the employment was terminated. Under date of June 29, 1921, defendant received a permit from the commissioner of corporations to sell certain of its shares of capital stock. Under date of October 14, 1921, the defendant received an amended permit from said commissioner and in neither of these permits was the contract between plaintiff and defendant referred to, passed upon or agreed to by the said commissioner. Said permits were revoked by said commissioner of corporations on June 21, 1922. Upon May 10, 1923, after the commencement of this action, the defendant filed an application with said commissioner for permission to issue its capital stock and a new permit was issued upon said application. On May 1, 1922, during the period of plaintiff’s employment, the stockholders of the defendant company held a meeting, at which plaintiff was present and at which plaintiff made a" motion that said stockholders apply to the commissioner of corporations for a permit to sell and issue its capital stock. On June 22, 1922, the directors of said defendant held a meeting at which plaintiff was also present.