Barry v. Barton

WILBUR, J.

Plaintiff brought this action to recover the sum of $13,500 damages for a breach of contract. Defendants had judgment on demurrer, and the plaintiff appeals. The breached contract is an exhibit to the complaint. It is an agreement by Barry, Handlin, and Barton to form a copartnership. Handlin and Barton were to advance the sum of $10,000 for the purchase of a wall-paper business and were to constitute the copartnership until the plaintiff

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under the terms of the contract had secured an equal interest therein as a copartner. The plaintiff was to be manager of the business and receive $150 per month and to be credited with a third interest in the profits as hereafter stated. This third interest in the profits was to be carried on the books as the “Barry Reserve Fund.” It was provided that when this fund amounted to $3,333.33 one-half of this fund should be paid to Handlin and one-half to Barton and thereupon the partnership should be composed of Barton, Handlin and Barry. The contract was entered into on the second day of June, 1919, and on the fourth day of October, 1919, the plaintiff was discharged and his further participation in the business was prevented by the defendants. ■ Plaintiff alleges that at the time of his discharge the profits of the business amounted to $8,000. The defendants demurred to plaintiff’s complaint generally and for lack of jurisdiction. The defendants’ contention is in effect that plaintiff’s employment was to continue for two years; that unless at the end of that term the Barry reserve fund then amounted to $3,333.33 or more plaintiff was not entitled to enter into the copartnership or to any part of the profits; that if in the meantime for any reason plaintiff ceased his connection with the business he was not entitled to any part of the profits, and upon this hypothesis claim the only injury sustained by reason of his discharge is the sum of one month’s salary accruing between the date of discharge and the date when plaintiff secured other employment, and that this amount ($150) was not sufficient to give the superior court jurisdiction.

It will be observed that at the date of the discharge one-third of the profits amounted to $2,166.66 and that if the profits had been continued for another month at that rate one-third of the profits would have been $3,333.33. The contract provided: