Turner v. American Hospital Assn.

CONREY, P. J.

This is an appeal by defendant from a money judgment rendered upon a complaint for damages for breach of a contract of employment, which included a contract to repurchase stock in the defendant corporation, as stated in the first count.

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Judgment was rendered in favor of the plaintiff on the first cause of action for the sum of $2,500, with interest, and on the third cause of action for the sum of $215.15. Appellant concedes that the judgment as to said third count is correct.

The contract in question was a contract which provided for the employment of the plaintiff as manager of the Huntington Park Hospital of the defendant corporation, and the salary to be paid was set out in full therein. There is no dispute regarding the salary or the payment or nonpayment of the same. In addition to the contract of employment and payment of a salary therefor, the contract contained the following clause:

“I hereby acknowledge receipt of your check for $2500.00 and hand you herewith stock certificate for 2500 shares of stock in the American Hospital Association, Incorporated, par value $1.00 (estimate book value $2.15 per share). It being understood that if at the expiration of three months from the above date, your services are not satisfactory to the American Hospital Association, Incorporated, or for any reason you wish to tender your resignation, we will purchase your stock at a price not less than $2500.00 plus seven per cent (7%) interest from date of this contract. We agree to give you thirty days’ written notice if it is decided to cancel the terms of this contract after three months from date and shall expect the same amount of notice from you, if at any time after the three months, you decide to terminate it.

“If, after the expiration of three months from date, it is mutually agreed to continue under the terms of this contract, then the same shall be considered as in full force and binding upon both parties. ’ ’

Plaintiff performed services under this contract for approximately one year, or until October 6, 1927. The contract was terminated by letter addressed to the defendant corporation, signed by plaintiff, dated September 6, 1927. Plaintiff received 2,500 shares of stock of defendant corporation, as required by the terms of the contract. The plaintiff did not tender the stock to the defendant corporation. At the time of the trial and at the time of the execution of the contract, the defendant corporation had creditors and was indebted in a sum in excess of the assets