Muir v. Morris

• Decision Date: 16 May 1916
• Citation: 157 P. 785,80 Or. 378
• Parties: MUIR v. MORRIS ET AL.
• Court: Oregon Supreme Court

157 P. 785

80 Or. 378

MUIR v. MORRIS ET AL.

Supreme Court of Oregon

May 16, 1916

In Banc.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

On petition for rehearing. Former opinion affirmed, and petition denied.

For former opinion, see 154 P. 117.

In response to an urgent petition for a rehearing the entire record has again been examined. Morris & Whitehead, Bankers was a corporation which owned and had control of several other corporations, including the Oregon General Electric Company, which was incorporated on December 6, 1901, with a capital stock of $2,000,000 divided into 20,000 shares. W. T Muir and three others each subscribed for one share of the stock of the Oregon General Electric Company, and the balance of the stock was subscribed by Fred S. Morris, who held the stock, however, as the property of Morris & Whitehead Bankers. On June 7, 1902, the name of the Oregon General Electric Company was changed to the Oregon Water Power &amp Railway Company. On November 24, 1902, Julius Christensen and the defendants James H. Morris and Fred S. Morris formed a partnership under the name of Morris Bros. & Christensen, and succeeded to all the assets and business of Morris &amp Whitehead, Bankers. The capital stock of the Oregon Water Power & Railway Company was transferred from the corporation of Morris & Whitehead, Bankers, to the partnership of Morris Bros. & Christensen, the partnership agreement making James H. Morris and Fred S. Morris each the owner of two-fifths and Julius Christensen the owner of one-fifth of the stock so transferred. In June, 1905, the partnership of Morris Bros. & Christensen was dissolved, and about the same time James H. Morris and Fred S. Morris formed a partnership under the name of Morris Bros. When the firm of Morris Bros. & Christensen was dissolved, all the assets, including stock in the Oregon Water Power & Railway Company, which were apportioned to James H. Morris and Fred S. Morris, were taken over by the partnership of Morris Bros. In April, 1906, Morris Bros. sold all their stock in the Oregon Water Power & Railway Company for $65 per share.

W. T. Muir, an attorney, who occupied a high position in the profession, entered the service of Morris & Whitehead Bankers, on February 15, 1901, and his employment was continued by its successors in interest until April, 1906, when Morris Bros. sold all their Oregon Water Power & Railway Company stock. Mr. Muir received an agreed salary of $200 per month until April, 1902; pursuant to an agreement made in advance the amount was $275 per month from April, 1902, to December 31, 1902; during 1903 the agreed salary was $400 per month; on January 1, 1904, the salary was arbitrarily reduced by the employer to $275 per month, and while Mr. Muir did not formally agree to the reduction, he continued to receive $275 per month without objection during the remaining period of his service.

The amended complaint alleges that W. T. Muir "entered into the service and employment of the said Morris & Whitehead, Bankers, for an agreed salary as the attorney and counsel of said Morris & Whitehead, Bankers," and it was agreed that he would act as legal adviser for that corporation and for other corporations then owned and controlled by Morris & Whitehead, Bankers; that acting through its representative Fred S. Morris, the employer, Morris & Whitehead, Bankers, agreed with W. T. Muir that he was inadequately compensated for the services he was then performing, and that if he would continue in the service for such salary and devote his best energies to the success of the corporation, he would receive additional compensation for his services, and that such additional compensation would be--

"an interest in the property, shares of stock, profits, and business of the said Oregon Water Power & Railway Company and of the said other corporations then owned, promoted, and operated by the said Morris & Whitehead, Bankers; that at said time the amount and extent of the interest in the property, shares of stock, profits, and business in the said Oregon Water Power & Railway Company, and said other corporations which the said William T. Muir under said agreement was to receive as additional compensation which was not then and there fixed or determined, but the amount of such interest in the property, shares of stock, profits, and business of the said Oregon Water Power & Railway Company, and said other corporations, which the said William T. Muir was to receive, as aforesaid, was to be thereafter fixed and determined as soon as the business of the said Oregon Water Power & Railway Company, and the said other corporations, and the business of the said Morris & Whitehead, Bankers, should be made and become successful and profitable."

It is then alleged that the partnership of Morris Bros. & Christensen assumed and agreed to pay all the liabilities of the corporation called Morris & Whitehead, Bankers, and that the partnership agreed that W. T. Muir was inadequately paid, and that if he would devote his best energies to the properties of his employers he would receive as additional compensation "an interest in the property, shares of stock, profits, and business" of the corporations operated by Morris Bros. & Christensen, the extent of such additional compensation to be determined afterwards.

The plaintiff continues the narrative by averring that on or about November 7, 1904, in accordance with the agreements made with Morris & Whitehead, Bankers, and Morris Bros. & Christensen relative to additional compensation, the partners in the firm of Morris Bros. & Christensen agreed among themselves that the amount, character, and manner of payment of the additional compensation which W. T. Muir was to receive would be 1,000 shares of the capital stock of the Oregon Water Power & Railway Company, but that the stock was not issued to him. The pleading proceeds by alleging that when the partnership of Morris Bros. & Christensen was dissolved, and as a part of the dissolution agreement the dissolving partners agreed that the 1,000 shares of the Oregon Water Power & Railway Company stock which the partnership had in November, 1904, determined to issue to Muir would be and was his property, and that he was entitled to the stock as additional compensation; and that it was agreed between "Julius Christensen on the one hand, and the said James H. Morris and Fred S. Morris on the other hand," that James H. Morris and Fred S. Morris would deliver to W. T. Muir immediately after the dissolution of the agreement 1,000 shares of the capital stock of the Oregon Water Power & Railway Company, and--

"that in furtherance and in part performance of the said agreement of dissolution of the said partnership of Morris Bros. & Christensen made between the said members thereof as aforesaid, the said Julius Christensen, then and there assigned, turned over, and delivered unto the said James H. Morris and Fred S. Morris all of the capital stock of the said Oregon Water Power & Railway Company then owned by the said Julius Christensen and all of his interest in the said Oregon Water Power & Railway Company."

The complaint concludes by averring that Morris Bros. sold the capital stock of the Oregon Water Power & Railway Company including the 1,000 shares which should have been delivered to W. T. Muir for $65 per share, on account of which it is...