Linton v. Unexcelled Fire-Works Co.

The material,facts in this case are not the subject of dispute. The plaintiff on the 14th of July, 1884, entered into the employment of the defendant. The term was indefinite. The money salary per year was to be $2,000, and in addition the net earnings on 30 shares of the capital stock of the defendant. These earnings were to be credited to the plaintiff until the earnings should aggregate the par value of the shares, $3,000, when the stock was to be issued to plaintiff. The parties continued under this agreement for three years without any change of its terms. There was a new agreement made to replace it from the 4th of July, 1887. The parties differ in respect to the time when a certain paper intended to evidence the oral agreement was made. It was made, and it is quite immaterial when, and' it was made solely to evidence the oral agreement. Mr. Johnson, who drew the agreement, states the time of execution to have been in January, 1886. The plaintiff says it was given in September, 1887, after the agreement had expired by three years’ execution, and its replacement by a new agreement. Whenever signed, it was dated back to the commencement of that employment. This agreement introduced the word “dividends” in the place of “net earnings.” A certificate for 21 shares of the stock was given for net earnings of the company in September, 1887, and it is- an important fact that the dividends were less than the earning. The parties both agree that the paper was to change nothing. Mr. Johnson states the oral contract to have been that the stock was to rest on profits “earned as declared in dividends.” The plaintiff states that the contract as to the stock was to rest on net earnings. Either by mistake or design the wordj“dividends” only was used as to the basis for stock in the writing. This writing changed nothing, and was designed to solely evidence the oral agreement. If it failed to do it, the agreement really made, and not the mistaken evidence of it, prevails. The authorities cited as to mistake, and as to mutual mistake, have no place in a case like tnis, where the original agreement was plain, and the writing which intended to evidence it failed to do so. The 21 shares of stock were properly issued for a period ending December, 1886. It is not denied but that the earning for the remainder of the three years was 4|-shares. The present contract entitles the plaintiff to this. It represents the earnings of the company from January, 1887, to July, 1887, when the contract was wholly and entirely terminated by the parties. If the plaintiff is right in his appeal, the defend*497ant is wrong in his claim that 4-J shares of the stock delivered should be returned. The judgment dismissing the complaint should be reversed, and judgment rendered that the plaintiff recover the 4J shares, with costs. The judgment against the defendant’s counter-claim should be affirmed, with costs.

All concur.