Wright v. Phillips Fertilizer Co.

*309 Brogden, J. Two questions of law are presented upon the record: 1. Is the plaintiff estopped from asserting his claim for salary under the facts of this ease? 2. Is the judgment of the District Court res adjudicataf The plaintiff alleges that in December, 1919, at a regular meeting of the directors of the corporation, he was employed for a period of five years at a salary of $5,000 a year. The minutes of the corporation, however, for that meeting declare that it was “ordered that Geo. W. Wright be paid a salary of $5,000 for the year 1919.” The plaintiff, George W. Wright, who wrote the minutes of the meeting, testified: “I put down what they said; I didn’t say anything to the contrary; I already had an understanding; I didn’t have anything to say about it. I wrote it down as they fixed it. I was at the meeting and wrote down the minutes as passed at that meeting. There were no written records of the transaction of that meeting except the minutes. I kept the minutes.” At the meeting of the directors of the company, held on 6 January, 1920, the following entry appears: “On motion, duly seconded, it was ordered that G. W. Wright be paid a salary of $6,500 for the year 1920.” In regard to this entry in the minutes, plaintiff testified: “I prepared the minutes of the meeting on 6 January, 1920, when my-salary was fixed at $6,500 for the year 1920. It was done according to custom. I wrote the record of the minute book, and Eenner Phillips signed it as secretary. I drew that salary -for ten months of 1920. I drew like I always did. Some of it was paid in paper. Eor the remaining two months they paid me $150. It was paid at a different rate after October, 1920. I drew out all that was allowed me. I took what they gave me. . . . Dp to November, 1920, I think all the records in the minute book were written by me, except the signatures of Eenner T. Phillips.” Prom this testimony of the plaintiff it is apparent that the minutes of the corporation, prepared by the plaintiff, show that the salary of $6,500 was confined to the year 1920. He is now claiming in this action the balance of his salary at $6,500 per year subsequent to 1920. It is a well settled principle of law that a failure to enter a resolution of the stockholders of a corporation on its minute book at the time it was adopted does not affect its validity. Such corporate acts can be proved by parol testimony where they are not recorded. Bailey v. Hassell, 184 N. C., 458; Everett v. Staton, 192 N. C., 216. However, the question presented here is not whether the proceedings of the meetings can be established by parol evidence, but whether or not the minutes as written by the plaintiff himself estop him from claiming *310 an amount in excess of that specified in the written record. "On 6 January, 1920, when the meeting was held, the plaintiff was vice-president of the corporation and participated in that meeting and wrote the minutes thereof. “It is well understood that a stockholder in a private corporation is bound by a corporate resolution regularly passed in accordance with its charter and by-laws, and although attended with some irregularities a member who is present when a measure is formally passed and votes for the same, or fails to make protest, is ordinarily concluded.” Hoke, J., in Meisenheimer v. Alexander, 162 N. C., 227; Winstead v. Hearne, 173 N. C., 606. If the plaintiff had a valid contract with the corporation for five years service, it was his duty to give notice of his contentions and not wait until the corporation passed into the hands of other parties, and after a lapse of four years to assert in court a claim for services in excess of the amount specified in the resolution by the directors in a meeting in which he participated. After November, 1920, the plaintiff was paid the sum of $150 a month. He made no protest, but accepted this small payment, and when asked about the matter, replied: “I will take what they "give me, but I will contend for what they owe me.” After plaintiff’s salary was increased to $175 per month, and until his discharge in ■1923, the record does not disclose that he made any protest or gave any notice whatever to the corporation as to his contention that he had a five-year contract for $6,500 per year. The principle applicable to this state of facts is thus declared in Hill v. R. R., 143 N. C., 557: “It is a general rule of law, as well as of good morals and fair dealing, that if a party is silent when he should speak or supine when he should act, he will not afterwards be permitted to either speak when he should be silent or to act when he has failed to do so at the first proper and opportune moment” Applying these principles of law to the facts appearing Upon the record, we hold that the plaintiff cannot now be heard to claim this excess salary. The same principles of law control the rights of plaintiff with respect to his claim for one-fifth of the so-called surplus account. After the suit with Pringle had been settled, the plaintiff participated in a corporate meeting held on 7 January, 1922, and acted as secretary of the meeting, and, as such, recorded the minutes thereof. The! minutes show that preferred stock was issued to Flynn; Leach and Winslow for $55,000 by reason of the so-called surplus account. The plaintiff made no protest until the suit was brought in January, 1925, and he cannot now be heard to attack this transaction. Winstead v. Hearne, supra; Meisenheimer v. Alexander, supra. *311 It is not necessary to decide whether or not the decree of the Federal Court operated as an estoppel by judgment. The pleadings apparently are broad enough to have such effect, but, as we hold that the plaintiff is estopped upon the facts and principles of law heretofore declared, it would be useless to discuss the effect of the decree of Judge Connor. The judgment as rendered is Affirmed.