Richards v. Church Balance-Gear Co.

Ostrander, C. J.

{after stating the facts). 1. The first proposition is based upon the statute (2 Comp. Laws, § 6083) and upon a supposed failure of the testimony to prove that the contract of hiring was signed by two managers of the defendant association. We are not referred to any ruling upon the subject, and have found in the record no reference to any such defense. On the contrary, the notice given with the plea admits a contract of hiring. Raised for the first time in this court, the point is not open for consideration.

2. The witness M. Clay Church, who was secretary of defendant, was asked:

“ Q. Whether or not at any meeting of that board [ meaning defendant’s board ] there was brought up the question of Mr. Richards, under any contract he might have, having a right to tender back his stock and receive cash for it.”

And again:

“With your honor’s permission, I want to ask this witness the same question with reference to the year 1909; whether the matter of Mr. Richards having a right to surrender his stock received as a part of his salary and take cash for it was ever brought before the board.”

Answers were excluded. The trial proceeded upon the theory that a contract of hiring had been made, but no one claimed it was made by the board. One of the terms of the contract, as stated by plaintiff, was disputed. Certain correspondence was in evidence and indicated some of the terms of the contract. Defendant’s officers, or some of them who-made the contract, were available as witnesses and gave testimony. Mr. M. B. Church, who negotiated the contract of hiring, testified, and his testimony is undisputed, that he never reported the matter of the option of plaintiff to take cash instead of stock to the board, and never said anything about the matter to any member of the board. Under the circumstances, we think reversible error is not made out.

It may be said, also, although the point is merely stated and not argued, that it was not error to refuse to give defendant’s request that there was no evidence that defendant ever contracted to take back stock issued as a part of his salary. The cases of Wilbur v. Stoepel, 82 Mich. 344 (46 N. W. 724, 21 Am. St. Rep. 568), and Scripps v. Sweeney, 160 Mich. 148, 163 (135 N. W. 72), are not in point here. Plaintiff alleges, and defendant admits, a contract with the defendant. The testimony tends to prove a conditional purchase of shares in accordance with the contract, and that they were issued to plaintiff as “trustee.” There is involved no theory of a private contract between one of the partners and the plaintiff. The rights of general creditors of defendant are not involved, nor the solvency of defendant. See McIntyre v. E. Bement's Sons, 146 Mich. 74 (109 N. W. 45).

3. Defendant asked that the jury be instructed that the contract was one at will and defendant not liable for any salary after January 1, 1910. The court ruled that the contract of hiring was a contract from year to year, and not one for an indefinite period, and that it terminated July 1, 1910, unless plaintiff was sooner discharged for cause. It is said there is no testimony that the hiring was for a year. It does not appear that the record contains the substance of all the testimony given upon the trial. Clearly the declaration asserts, and the notice of special matter of defense admits, that the original contract was for a period of one year from and after July 1, 1908. It is said in argument that it was permissible to amend the notice to agree with the testimony, and that the position of counsel for defendant amounted to an amendment; at least excused the failure to offer to make a formal amendment. We cannot assume that, if defendant had indicated upon the trial the desire to amend the notice of its defense, plaintiff would not have supplied, for the court and jury, additional evidence in support of his theory that the contract was for a definite period. We find in the record considerable testimony tending to prove that the parties understood that the hiring was for a definite period. Some of it, it is true, indicates that plaintiff desired a permanent position, and a mutual desire that both parties would find it agreeable to renew the arrangement at the end of the year upon the same or upon other terms. We find no testimony tending to prove that it was the understanding of either party that the contract might be terminated at the will of either, except that showing the action of defendant in dismissing the plaintiff.

4. Matter, other than that arising upon the trial, advanced as a reason for a new trial, was newly discovered evidence. It was set up in an affidavit. Plaintiff filed a counter affidavit. It is apparent from these affidavits that if the matters contained therein should be given in evidence upon a new trial an issue of fact would arise thereon relating wholly to the amount of the salary agreed to be paid to plaintiff. We think the court was not in error in finding that the explanation made by plaintiff was not materially inconsistent with the testimony given by him at the trial. The showing that the defendant’s witness M. B. Church has since the trial found a daily diary and memorandum in several books which refresh his recollection, and that “the said diaries and memoranda have a very important bearing upon the issues in said case, and their production will, he believes, bring about an entirely different result in case a new trial is granted,” presents no reason for granting a new trial.

The judgment is affirmed.

Bird, Hooker, Blair, and Stone, JJ., concurred.