Hygienic Health Food Co. v. Grant

SHAW, C. J.

The district court of appeal in the above-entitled action rendered an opinion of which the following is a portion: .

“This is an appeal by the plaintiff from a judgment against it in an action to recover from the defendant, who was formerly its general manager and member of its board of directors, the sum of $300 claimed to have been illegally paid by the plaintiff company to the defendant as salary. The defendant had acted as such general manager for some time prior to February 1, 1918, and during that time, according to the testimony, had received a salary of $125 a month. From that time on, for a period of one year, the defendant was paid $150 a month. The increase of $25 a month for one year—$300—is the subject of this action.

“Payment of $150 a month to the defendant as salary, for a period of six months, was purported to be authorized by a resolution of the board of directors of the plaintiff company on February 19, 1918.

“The appellant argues two questions: 1. That this resolution providing for payment of $150 a month was invalid because not carried by the requisite number of votes of directors. 2. That if said resolution was valid, nevertheless, after the expiration of the period of six months covered by said resolution, the defendant was not entitled to $150

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a month for his services while he continued in the employment.

“The action was for money had and received by the defendant for the use of the plaintiff, and the trial court found that the defendant was not indebted to the plaintiff, impliedly finding that the resolution was properly passed and that the salary of defendant was thereby fixed at $150 a month for six months. This view of the evidence finds some support in the record. It appears that there were five directors of the company. Two of these, admittedly, voted for this resolution. The defendant was present at the meeting, but was disqualified, by reason of his interest in the subject matter, to vote upon this resolution. The other directors were Cyril C. Lotz, who was secretary of the company, and Mr. Lewars, the president of the company, who was chairman of the meeting of the board. It is admitted that Mr. Lotz did not vote for the resolution. The dispute arises over the vote of Mr. Lewars. The original minutes of the meeting of February 19, 1918, where this question of increase of salary first came up for discussion, were written up by the secretary and were offered in evidence. They recite that the motion was duly made and seconded and that ‘the motion thereupon was passed, the chair and the secretary not voting. ’ When these minutes were read at the following meeting of the board of directors, held on May 14, 1918, director Lawson, who had made the original motion, raised the question about the correctness of the minutes. He testified that when the minutes were read and he discovered that they were so written up as to convey the idea that Mr. Lewars had not voted on the resolution, he objected that they did not recite the fact, and asked that the erroneous portion be stricken out, and it was so agreed. Mr. Rogers, another director, also testified that at the meeting of May 14,1918, director Lawson objected to the statement in the minutes of the previous meeting that ‘the chair’ had not voted, and such words were accordingly stricken out. It is true the minutes of May 14, 1918, do not recite this objection of Mr. Lawson that the minutes did not state the fact with reference to the vote of Mr. Lewars, but they do show an amendment which eliminates the recital that ‘the chair’ did not vote, and, to that extent, corroborate the testimony of the two witnesses