L. J. Mueller Furnace Co. v. Holmes

Eschweiler, J. Whether the testimbny_of defendant or Mueller as to the exact language used in the interview between them on July 26th when the relationship of employer and employee terminated be considered as the more correct recollection of what actually was said, we deem entirely immaterial. From defendant’s own testimony on direct and cross-examination the following facts appear: Defendant was the trusted employee of plaintiff, holding an important position of an executive nature as foreman or shop superintendent, continuing from the same position and situation that he had occupied prior to February 1, 1916, with the M. F. Co. As such foreman or superintendent he was at all times under the direction and supervision of Mr. Mueller, the secretary and general manager of the plaintiff. Repeatedly from the fall of 1916, when defendant had stated to Mr. Mueller that he had formed some idea as to a design for a smokeless furnace, [524] Mr. Mueller had requested defendant, in view of the approaching termination of their relationship, to put such idea into some concrete form by way of sketch or drawing. From these and other undisputed facts it must be held that the request made by Mr. Mueller that defendant should devote the remainder of his time and attention while in plaintiff’s employ to that express purpose was important and material. It involved no departure from the high grade of service which defendant had been rendering and for which he had been employed. Whether or not such requested service could be brought to a successful or practical termination within the period still left of defendant’s employment was a matter of concern to plaintiff and not to defendant. Under such a situation there is no escape from the cbnclusion as a matter of law that defendant’s wilful refusal to enter upon such required service was unjustifiable and a breach of his contract duty and obligation. If what followed be considered as a discharge of defendant by plaintiff it was justified. If it be considered a reason or excuse for defendant’s ceasing to render service it was insufficient. Such conclusion is supported by the decisions. Green v. Somers, 163 Wis. 96, 100, 157 N. W. 529; Green Bay F. Co. v. Jorgensen, 165 Wis. 548, 552, 163 N. W. 142; In re Milwaukee M. Co. 246 Fed. 671, L. R. A. 1918C, 1027 and note p. 1030; May v. New York M. P. Corp. (Cal.) 187 Pac. 785, 788; note in 24 L. R. A. n. s. 814. The defendant was not entitled to recover under his counterclaim. The forty-nine or fifty shares of stock of the M. F. Co. for which upon the undisputed record he had ostensibly subscribed could not have been lawfully issued to him and would have been void under the provisions of sec. 1753, Stats., except issued in consideration of money or labor or property at its true money value actually received by the corporation to the par value. Considering his own evidence alone, including his examination under sec. 4096, Stats., prior to the trial in the civil court, and which, although re [525] turned with the record here, does not seem to have been offered in evidence on the trial but yet is referred to by defendant on this appeal, it appears that the subscription for the forty-nine shares of stock was made after defendant had an existing contract of employment with the M. F. Co.; that no change was then made in such contract; that the corporation received nothing of value at the time of the subscription from the defendant nor any obligation other than the form of his subscription. It was, under defendant’s own testimony, a pure gratuity. Had the certificates of stock been actually made out for such subscription and delivered to defendant, it would nevertheless have been a void issue and he could have' obtained no rights thereby as against the corporation. Thronson v. Universal Mfg. Co. 164 Wis. 44, 49, 159 N. W. 575; Tramp v. Marquesen, 188 Iowa, 968, 176 N. W. 977. He surrendered nothing of value at the time of the dissolution of the M. F. Co. There was nothing pleaded, proven, or offered to be proven by defendant tending to 'show- anything in the nature of a valid and binding contract between them whereby defendant was to receive anything from the plaintiff for such surrender. The errors claimed to have been made on the tríalas to the rejection of evidence offered by defendant, including the memorandum as to the value of defendant’s stock which is set out in the statement of facts, could in no wise have prejudiced the merits of defendant’s position on this branch of the case. By the Court. — Judgment affirmed.