Rush v. Aunspaugh

• Decision Date: 19 December 1912
• Citation: 179 Ala. 542,60 So. 802
• Parties: RUSH v. AUNSPAUGH.
• Court: Alabama Supreme Court

60 So. 802

179 Ala. 542

RUSH v. AUNSPAUGH.

Supreme Court of Alabama

December 19, 1912

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Howard C. Rush against Glenn E. Aunspaugh. Judgment for defendant, and plaintiff appeals. Affirmed.

The complaint is as follows:

"The plaintiff, Howard C. Rush, claims of defendant, Glenn E Aunspaugh, the sum of five thousand ($5,000.00) dollars damages for the breach of a certain agreement entered into between the said Howard C. Rush and Glenn E. Aunspaugh, on the 18th day of September, 1909, which said contract is in words and figures as follows: 'State of Alabama, Mobile County. This instrument witnesseth the following agreement and contract this day entered into by and between Glenn E Aunspaugh and Howard C. Rush, both of Mobile, Alabama; that is to say: That Glenn E. Aunspaugh, who is now the sole owner of the plant and business known as the "Imperial Sanitary Laundry," hereby agrees and contracts that he will cause a corporation to be formed, to be known as the "Imperial Sanitary Laundry," to be capitalized at fifteen thousand ($15,000.00) dollars, or less; the capital stock to be paid up in full by the sales of the corporation of said plant and business, same to be entirely free from debt, and that he will cause said corporation to enter into a contract of employment of said Rush for a term of two years at a monthly salary of one hundred and fifty ($150.00) dollars, and that, upon the faithful fulfillment of all of the obligations hereinafter assumed by Howard C Rush for the period of two years, he will cause one-sixth of the said capital stock to be transferred and assigned to the said Howard C. Rush as his own absolute property. In consideration of the foregoing promises on the part of the said Glenn E. Aunspaugh, he, the said Howard C. Rush undertakes and promises that he will devote his entire time and energy to the service of the said proposed corporation at a salary of one hundred and fifty ($150.00) dollars per month for the term of two years, and that he will procure for the said corporation during each and every month of said employment at least one thousand dollars' worth of satisfactory business which would not otherwise be done by it. It is distinctly understood and agreed between the said parties that the obligation of the said Glenn E. Aunspaugh to cause the said one-sixth of the capital stock of said corporation to be transferred and assigned to said Howard C. Rush at the end of the term of said employment is dependent and conditioned upon the said Howard C Rush's complying with all of the above obligations, and upon the realization by the said corporation of at least one thousand dollars during each month of said employment from satisfactory business procured by the said Howard C. Rush, and upon the said Howard C. Rush remaining in said employment and faithfully discharging the duties of solicitor and wagon foreman during the entire term of employment. It is further understood and stipulated that Glenn E. Aunspaugh is to be recognized by the said Howard C. Rush as the head of the concern, and entitled to control its affairs, and that the said Rush will obey his orders and directions in the performance of his duties. Made this 18th day of September, 1909. Glenn E. Aunspaugh. Howard C. Rush.' And plaintiff says that, although he has complied with all its provisions on his part, the defendant has failed to comply with the following provisions thereof, viz.: That said plaintiff has failed to incorporate or form the corporation to be known as the 'Imperial Sanitary Laundry' as provided for in said agreement, and has also failed and refused to issue to said Howard C. Rush one-sixth of the capital stock of said corporation known as the 'Imperial Sanitary Laundry,' as provided by said agreement; hence this suit.

"Second. Plaintiff claims of defendant the further sum of five thousand ($5,000.00) dollars damages for the breach of a certain agreement entered into between said Howard C. Rush and Glenn E. Aunspaugh on the 18th day of September, 1909 which said agreement is fully set out in count 1 of this complaint, and is hereby referred to and made a part of this complaint, and is hereby referred to and made a part of this count, as though the same were herein fully and...