Lamson v. Lamson

The opinion of the court was delivered by Royce, J. All the facts stated in the declaration being admitted by the demurrer, the inquiry is, do those facts constitute a legal cause of action ? The matter stated by way of inducement to the contract relied upon, would have constituted a good cause of action ; and the only materiality of that statement as affecting the question of liability upon the contract now relied upon, is in furnishing a consideration to support it, and as explanatory of the circumstances under which it was entered into. The contract upon which the plaintiff now claims to recover, was in the form of a proposition made by the defendant to the plaintiff, that if the plaintiff would take hold with them at Windsor, and do the best he could to build up and promote the prosperity of the company and make its business profitable, remunerative and successful, he should receive as compensation for his services a salary of $1800 a year, and, in case that any change was made in the business or management of the company by which the plaintiff should be thrown out of employment in said company, or deprived of his salary or pay for his services, then the defendant would take back the stock -in said company which had been sold by him to the plaintiff, and pay him back the $10,000 paid for it. There were other contingencies named in the proposition upon the happening'of which the defendant was to take back and pay for said stock, but the one recited is the only one relied upon. It is alleged that the above proposition was accepted by the plaintiff and then and there became and was binding between the parties, and was in lieu of any claim or cause of action stated by way [599] of inducement in the declaration ; that the plaintiff, in consideration of said promise and undertaking of the defendant, entered upon the service of said company, under the direction of the defendant, who then was, and has ever since continued to be, the manager of the business of said company, and did and performed all that was required of him by said proposition, from the 29th day of June, 1867, until the 1st day of October, 1869, when the defendant without law or right dismissed him from the service of the company, and stopped his salary and pay from and after that day, leaving due to him §200 for services rendered under said contract; that on the 3d day of November, 1869, he offered the defendant the stock so purchased of him, and to transfer the same to him, and demanded the $10,000 paid for the same, and that the defendant refused to take back said stock and pay him for the same. It is now claimed that there is no sufficient consideration shown to support the alleged promise. The proposition made by the defendant, when accepted and acted upon by the plaintiff, was in legal effect a promise that he would do and perform all that was embraced in it, upon performance or tender of performance by the plaintiff; and it is familiar law that mutual and concurrent promises are a sufficient legal consideration for the promise of each. 1 Chit. Pl. 297, 298, and cases there cited. It is admitted that the proposition was binding upon both parties, so that there was such mutuality of obligation as the law requires. If any othér consideration was required, the fact that the proposition which was made and accepted it is admitted was in lieu of a good previous cause of action, might be invoked to support it. A fundamental rule in the construction of agreements is, to ascertain the intent of the parties ; and the intent of the parties, as we understand it, was to settle and merge the previous cause of action in the new contract. It is further claimed that whatever contract was made with the plaintiff, was in law a contract between him and the company; and that he should have sought his remedy against the company. The declaration alleges that the contract was made with the defendant. It is stated that he was then the manager of the business affairs of the company, but it is not alleged that the proposi [600] tion made was made by him, as such manager. That statement was descriptive of the capacity in which he was acting, as between himself and the company, but cannot be treated as descriptive of the capacity in which he was contracting with the plaintiff. From what is admitted it results that the contract was the personal contract of the defendant; and his liability upon it is not influenced or limited by the fact that the services to be performed under it by the plaintiff were to be for the company, instead of being directly for the defendant. The defendant, while manager of the business affairs of the company, without law or right dismissed the plaintiff from its service, and stopped his salary and pay. The proposition under which the plaintiff entered into the service of the defendant for the company provided that, if any change should be made in the business or management of the company by which he should be thrown out of employment or deprived of his salary or pay for his services, the defendant should take back his stock and pay him for the same. The plaintiff was thrown out of employment, and deprived of his salary by the wrongful act of the defendant, and he cannot avoid liability for the consequences of that act upon the novel claim that what he did was without law or right, or that there was no such change in the business or management of the company as was provided against in the proposition made by him, when he as its manager had discharged the plaintiff from his employment. There was no error in the judgment of the County Court, but on motion of defendant the judgment is reversed, pro forma, and cause remanded, with leave to replead on usual terms.