Bogovich v. Capitol Silver-Lead Min. Co.

• Decision Date: 01 December 1950
• Docket Number: SILVER-LEAD,No. 7686,7686
• Citation: 71 Idaho 1,224 P.2d 1078
• Parties: BOGOVICH v. CAPITOLMINING CO.
• Court: Idaho Supreme Court

Page 1078

224 P.2d 1078

71 Idaho 1

BOGOVICH v. CAPITOL SILVER-LEAD MINING CO.

No. 7686.

Supreme Court of Idaho.

Dec. 1, 1950.

Whitla & Knudson, Coeur d'Alene, for appellant.

Chas. E. Horning, Wallace, and Robert E. Brown, Kellogg, for respondent.

GIVENS, Chief Justice.

Appellant sued respondent for $3,906.72 claimed unpaid salary as General Manager from May 1, 1946 to June 8, 1948, $400.00 for being discharged June 8, 1948, without being paid, evidently under Section 45-606, I.C., and $500.00 attorney's fees under Section 45-605, I.C. The minutes of April 15, 1946, attached to and made a part of the complaint, as material, were as follows:

'* * * Matt Bogovich brought to the attention of the meeting that during the year 1945 he had devoted considerable time to managing the affairs of the company and that since January 1, 1946, his duties as General Manager of the company had required his entire time. He further stated that he had never received any salary for his past services and that he would be willing to accept $900.00 payable in capital stock at par value as full compensation for his services to and including April 30, 1946. Thereupon H. M. Huemann moved that Matt Bogovich be paid 18,000 shares of capital stock at par value in payment in full for his services to April 30, 1946 and that effective May 1, 1946 he be paid $400.00 per month salary as General Manager of the company. This motion was duly seconded and unanimously carried. * * *.'

Defendant admitted the original hiring and service of demand for payment, but asserted the payment of $400.00 was conditioned upon the sale of stock by appellant; that he had sold no stock and, furthermore, he had voluntarily accepted a reduction of his salary as general manager from $400.00 to $125.00 per month as watchman, on and after the first day of April, 1947, concededly thus paid.

Appellant was the sole witness in his own behalf, except the cross-examination under the statute, of the Company's secretary-treasurer. During the cross-examination of appellant, defendant's Exhibit 3, Minutes of the Meeting of January 3, 1946, was introduced in evidence.

At the conclusion of appellant's case, respondent's motion for nonsuit was granted and the appeal herein is from the resultant judgment of dismissal.

It is axiomatic that upon motion for nonsuit or directed verdict, the evidence must be construed in the light most favorable to the plaintiff. Dept. of Finance v. Union Pac. R. Co., 61 Idaho 484 at page 492, 104 P.2d 1110.

All reasonable inferences are to be resolved in favor of plaintiff. Hopkins v. Hemsley, 53 Idaho 120 at page 124, 22 P.2d 138; Branson v. Northern Pacific Ry. Co., 55 Idaho 220 at page 226, 41 P.2d 629; Dept. of Finance v. Union Pac. R. Co., supra.

Respondent's contention that the $400.00 salary was conditioned upon the sale of stock by appellant and that he had sold no stock is largely bottomed on defendant's Exhibit 3, the Minutes of January 3, 1946, which at the most merely raised a conflict as to the terms of the contract of hiring shown in the subsequent minutes of April 15, 1946. Respondent's brief thus states:

'In support of the motion for non suit it was argued, as it must appear from the transcript that it would have been argued, that--(emphasis ours)

'First: That when at the directors' meeting held on April 15, 1946, Mr. Bogovich's salary was fixed at $400.00...