Fine v. Telephone & Power Supply Co., 41200
| Decision Date | 07 November 1959 |
| Docket Number | No. 41200,41200 |
| Citation | 345 P.2d 616,185 Kan. 383 |
| Parties | Howard B. FINE, Appellee, v. TELEPHONE & POWER SUPPLY CO., Inc., a Corporation, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. As the trier of the facts, it is the province and duty of the trial court to determine what weight and credence it will give to the testimony of the witnesses on both sides of a lawsuit.
2. Appellate courts cannot determine from the records submitted, the persuasiveness of testimony which a trial court may have believed.
3. A corporate officer's right to a salary, like any other known right, may be waived, if such clearly appears to have been his intention.
4. The record in an action by an officer and stockholder of a corporation to recover wages and salary, examined and it is held: There was substantial evidence to support the trial court's finding that the plaintiff did not agree to cancel all or any part of wages or expenses owed him by the defendant corporation, and no error was committed in rendering judgment for the plaintiff as more fully set forth in the opinion.
William L. Rees, Topeka, argued the cause, and Hall Smith, Topeka, and Lyle L. Robertson, Washington, D. C., were with him on the briefs for appellant.
Ernest J. Rice, Topeka, argued the cause, and Richard R. Funk, Topeka, was with him on the briefs for appellee.
The plaintiff, Howard B. Fine, commenced two actions in the district court; one against the Neale Construction Company, Inc., and the other against the appellant, the Telephone & Power Supply Co., Inc., to recover certain salary and expense money. The actions were tried together, and the trial court made findings of fact and conclusions of law in the case of Fine v. Telephone & Power Supply Co., Inc. and entered judgment for the plaintiff. This appeal involves the latter case only.
It is unnecessary to set forth the pleadings of the parties except to say that the plaintiff alleged the defendant Telephone & Power Supply Co., Inc. (telephone company) was indebted to him for salary and wages in the amount of $1,750, representing seventeen and a half months' employment at $100 a month, which indebtedness was denied by the telephone company, and it alleged that plaintiff was an officer and director of the company and that he and other officers agreed to cancel and relinquish all salaries and claims for service and reimbursement for expenses incurred by them after May 31, 1953, and until the financial condition of the company improved which had not occurred at the time of plaintiff's resignation on November 15, 1954. It was also alleged plaintiff was indebted to defendant in the sum of $152.34 for goods and merchandise.
A summary of the evidence follows. Dory J. Neale, Senior, and B. Ellen Neale, his wife, were the principal stockholders of the Neale Construction Company, Inc., and the defendant telephone company. Neale was president and Mrs. Neale was secretary of both companies.
In the early part of 1952, Fine, a man with 20 years experience in the telephone industry, investigated the Neale Construction Company, Inc. (construction company) preparatory to investing $27,000 in it. Following his investigation of the books of the construction company, and in March, 1952, Fine invested $25,000 in cash and assigned to it a jeep trencher machine worth $2,000. As a result of this investment, Fine commenced work for both the construction company and the telephone company, although he did not invest in the telephone company at that time. He was employed full time by the construction company at a salary of $685 a month, and was elected a director and made third vice president of the telephone company at a salary of $10 a month.
Plaintiff fulfilled a number of duties for the telephone company: he hired and helped to train new personnel; assisted in the office; made public relation contacts with contractors, and perhaps most important, he spent three months total time preparing a quotation or a type of sales catalogue which was used extensively by the telephone company and was used continuously following his resignation on November 15, 1954.
On May 8, 1953, Fine's salary as vice president of the telephone company was increased to $100 a month retroactive to June 1, 1952. When that salary was paid to him in July, 1953, he used the $1,200 to purchase stock in the telephone company.
On March 31, 1954, at Neale's direction, all accrued officers' salaries in the amount of $2,880 were canceled on the general journal of the telephone company. That figure represented total salaries due officers, including plaintiff's salary of $100 a month, from June 1, 1953 to March 1, 1954. There is nothing in the record to indicate that Neale's action was the result of a meeting of the directors or officers of the telephone company. On the contrary the record indicates his action was prompted by a letter from the telephone company's accountants.
Neale testified that in March, 1954, he and Fine agreed to cancel all officers' salaries retroactive to June 1, 1953, and to discontinue future salary payments until the telephone company's capital and credit improved. Fine denied that he agreed with Neale to cancel his salary, but admitted that about April 4, 1954, Neale told him the board of directors of the telephone company had discontinued officers' salaries. However, the record indicates the board of directors did not take formal action on the salary matter until December 28, 1954, after Fine had resigned from the board of directors on November 15, 1954. At that meeting the following resolution was adopted to ratify the purported agreement of officers and directors to serve without salaries:
'Resolved, that verbal agreement of the Directors and Officers, to serve without salary in previous year, to continue for corporate year 1954, or such time as corporation shows a reasonable profit.'
The trial court found, among other things that plaintiff was an employee of the telephone company; that there was no agreement entered into between the plaintiff and the defendant whereby plaintiff agreed to cancel all or any part of his wages or expenses owed him by the defendant, and that the defendant was entitled as a set-off against the amount owed from the defendant to the plaintiff the sum of $152.34. In harmony with its findings the trial court entered judgment in favor of the plaintiff for $1597.66 with interest at 6 percent. Following the overruling of its motions for a new trial and to vacate the judgment, the defendant telephone company perfected this appeal.
The defendant's nine specifications of error were consolidated in its brief and argued under two principal...
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...184 Kan. 202, 336 P.2d 463; Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 209, 336 P.2d 469; Fine v. Telephone & Power Supply Co., 185 Kan. 383, 345 P.2d 616; Fine v. Neale Construction Co., 186 Kan. 537, 352 P.2d 404; Dennis v. Smith, 186 Kan. 539, 352 P.2d Highly summarize......
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...on appeal, to weigh conflicting evidence; that responsibility falls within the province of the trial court (Fine v. Telephone & Power Supply Co., 185 Kan. 383, 345 P.2d 616; Gerber v. Buehler, 194 Kan. 10, 397 P.2d 352), whose judgment, as we have said, must be upheld if supported by substa......
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...184 Kan. 202, 336 P.2d 463; Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 209, 336 P.2d 469, and Fine v. Telephone & Power Supply Co., 185 Kan. 383, 345 P.2d 616. The defendants did not move to set aside any of the findings of fact upon the ground they were not supported by ......