Stone v. Bancroft

Garoutte, J. This action is brought to recover upon a written contract for fourteen months’ salary, at the rate of three hundred and fifty dollars per month, commencing upon January 1, 1892. The verdict of the jury was in favor of plaintiff, and defendant appeals from the judgment and order denying his motion for a new trial.

A general demurrer was interposed to the complaint, and also a special demurrer to the point that the complaint was ambiguous, uncertain, and unintelligible in various particulars. The consideration of this demurrer leads us to an examination of the contract made by these parties, for that contract is set out in full in the complaint. The material parts thereof recite:

“ This agreement, made in San Francisco, California, by H. H. Bancroft and N. J. Stone, witnesseth: That in consideration of the valuable services done by the said Stone in conducting the publication and sale of the historical works of the said Bancroft, the business formerly being conducted as the Bancroft Works Department of A. L. Bancroft & Co., but now being done and shortly to be incorporated under the laws of California as the History Company, the said Bancroft hereby sells and assigns to the' said Stone a one-tenth interest in the said History Company, plates, paper, stock, money, outstanding accounts, or other property of said company, upon the following conditions:

“ The said N. J. Stone is to devote his whole time and [655]best energies, so far' as his health and strength shall permit, for a period of not less than ten years from the date of this agreement, to the publication and sale of the historical works of H. H. Bancroft, and of such other works, and conduct such other" business as may be from time to time taken up and entered into by said History Company; the said "Stone agrees not to enter into or engage in, directly or indirectly, any other mercantile or manufacturing business, or any other business or occupation which shall in anywise absorb his mind and strength, or interfere with his interest or efforts on behalf of the said History Company during the said term of ten years.

“ Upon the incorporation of the History Company one-tenth of the whole number of shares shall be issued and delivered to the said N. J. Stone, but should the said Stone fail in anywise to carry out this agreement, or any part thereof, in its full letter and spirit, then the said one-tenth interest in the said History Company shall be forfeited and revert to the said H. H. Bancroft; provided, and it is distinctly understood and agreed, that in case of the death of the said H. J. Stone before the expiration of five years from the date of this agreement, the said Stone having fulfilled all the conditions of this agreement up to that time, then one-half of the said one-tenth interest of the said Stone in the History Company shall go to his heirs, and be their property unconditionally. The salary of the said Stone shall be three hundred and fifty dollars a month.”