Youngberg v. South End Warehouse Co.

RICHARDS, J.,

pro tem.

This is an appeal from a judgment in favor of the defendant in an action brought by the plaintiff to recover the sum of $12,301.33, claimed to have become due to him under a certain written agreement made

[505]

and entered into between the parties hereto on February 1, 1909, and which provided for the delivery by defendant to plaintiff of one-fourth of its net income and profits, in payment for the rendition by the plaintiff of certain services to the defendant, as set forth in said agreement. The defendant in its answer admits the making of said original agreement, and the performance for a time of certain services by the plaintiff thereunder, but denies that there was ever any greater sum than two thousand four hundred dollars due or owing to said plaintiff under such agreement; and by way of further answer and defense avers, that by a subsequent agreement in writing, entered into between the parties on April 15, 1911, the said plaintiff waived and released his claims against the defendant for whatever share of its profits was due under the terms of the former agreement, for the consideration of the transfer to him of one-half of the capital stock of the defendant corporation, and of the payment to him thereafter of a stated salary of one hundred dollars a month for all future services to be performed by him. Upon the trial of the cause upon the issues thus tendered, both of these agreements were presented in evidence. There were also certain other facts admitted by the pleadings or referred to in the writings, which were the subject of proper consideration by the trial court in determining its rulings as to the effect of the later writing in respect to the obligations of the former one. One of these facts as admitted by the express terms of the plaintiff’s complaint, was the fact that shortly after the date of the first agreement between the parties, one G. W. Thomas was employed by the defendant, pursuant to an oral understanding with the plaintiff, to perform certain of the services which the plaintiff had engaged to perform by the terms of said writing. Another fact shown in evidence at the trial and found by the court, was the fact that the defendant was in an insolvent condition on April 15, 1911, the date of the sgcond written agreement. This later agreement contained a clause providing that the plaintiff, as one of the parties thereto, together with one George W. Lamb, also a party thereto, “hereby agree to assume, and hereby assume, all of the indebtedness due and jawing from the South End Warehouse Company. ...” Said agreement also contained a clause providing that “none of the parties of the third part (which included plaintiff) shall draw any money