
    John S. Giveen, Respondent, v. Levi L. Gans and Giveen Manufacturing Company, Appellants.
    
      Contract between two stockholders, directors and executive officers of a manufacturing corporation by which one of them, also its manager, was to have one-half the profits of a contract to be made between such corporation and another company — when enforcible. '
    
    In an action brought against Levi L. Gans and the Giveen Manufacturing Company to recover upon a contract made by the plaintiff with the defendant Gans, under which the plaintiff claimed to be entitled to receive half of the profits accruing under the sale of khaki cloth manufactured by the Giveen Manufacturing Company and sold by it to a corporation known as the Kenyon Company, it appeared that at the time of the making of the contract'the plaintiff was a stockholder, directpr and secretary of the Giveen Manufacturing Company and was also the manager of its manufacturing department, receiving ail annual salary of $4,000; that the defendant Gans was a stockholder, director and the president of the Giveen Manufacturing Company. At the time the suit was brought, the plaintiff and Garis were the only stockholders of the Giveen corporation and no rights of creditors were involved.
    The testimony tended to show that the plaintiff devised a peculiar finish for a cotton cloth called khaki, which would be available for use in connection with k contemplated contract with the Kenyon Company; that at first it was intended that the plaintiff and Gans should, as individuals, enter into the manufacture of the khaki, but that it was finally agreed that the cloth should be manufactured by the corporation and that the plaintiff should receive half of the profits; that the corporation manufactured the cfoth necessary to'fill the Kenyon contract and received the profits derived thereunder.
    The corporation was a converter of cotton goods, but the jury found that the manufacture of khaki -cloth was outside of its regular business and that the services rendered by the plaintiff in connection therewith-were no part of the duties of his employment.
    
      Held, that the plaintiff was entitled to recover.
    
      Semble, that if it had appeared that other persons besides the plaintiff and Gans were interested in the corporation, or that the corporation was engaged in the manufacture of khaki cloth, or that it was a part of the duties of the plaintiff’s employment to perform the services which he rendered in the matter of the manufacture of the goods and the making of the contract with the Kenyon Company, or that the corporation- had not ratified the contract made with the plaintiff, the latter would not be entitled to recover.
    Appeal by the defendants, Leyi L. Gans and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' New York on the 28th day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of March,. 1903, denying the defendants’ motion for a new trial made upon the minutes.
    
      Thomas D. Adams, for the appellants.
    
      Charles Strauss, for the respondent.
   O’Brien, J. :

The plaintiff sued upon a contract which was made by him and the defendant Gans under which, it was alleged, the plaintiff was to receive one-half of the profits accruing from the sale of a cotton cloth called khaki, manufactured by the Giveen Manufacturing Company and sold by it to a corporation known as the C. Kenyon Company. ' - ■

There are two crucial questions upon this appeal, the first and more important being as to whether the contract sued upon was valid and enforcible and, .second, if it were, whether as between the plaintiff and the defendant corporation it constituted a partnership agreement which covered all the transactions in khaki cloth in addition to that with the C. Kenyon Company. It appears that there were profits on the Kenyon contract and the amount allowed by the jury is not excessive. It further appears, however, that upon the other transactions in khaki cloth with other individuals and firms, the Giveen Manufacturing Company made a lbss, and the question whether or not the plaintiff as a partner should bear his part of the loss becomes, therefore, important.

We think that the disposition made by the learned trial judge in confining the contract sued upon to the transaction with the Kenyon Company was right and for the reason that it was the only transaction with which the plaintiff had anything to do, the subsequent transactions with the other firms having all been made after the plaintiff was deprived of his position and was no longer connected with the Giveen Company. The serious question, therefore, is whether the contract sued upon was valid.

At the time of the making of the agreement between the plaintiff and the defendant Gans, the plaintiff was in the receipt of a salary of $4,000 per annum from the defendant Giveen Manufacturing Company, was one of its stockholders, one of its directors, its secretary and the manager of the manufacturing part of the company. The defendant Gans was a stockholder, director and president of the company. There were two other stockholders named Bache and Von Gerichten, The preferred stock was $100,000, one-half of which was owned by Bache and the other half by the defendant Gans. The common stock, which was originally $150,000, was afterwards reduced to $1,500, and was owned as follows: Five shares by defendant Gans, five shares by Bache, three shares by plaintiff and two shares by Von Gerichten.

In the month of October, 1898, two months before the Kenyon contract was made, the defendant Gans purchased the stock of Bache and had his son elected director in Bache’s place, so that-at the time of the Kenyon contract Gans owned all the preferred and all the common stock, except three shares of the common stock owned by the plaintiff and two shares. thereof owned by Von Gerichteh. Although the testimony is.that Von Gerichten’s stock was all purchased by Gans in February, 1898, we are inclined to think that this must be an error in the printed record, for, of course, from the other dates it apparently should be February, 1899. Whatever the date, however, of the purchase of. the two shares of Von Gerichten, it is conceded that when this suit was brought, other than the stock owned by the plaintiff, the defendant Gans owned all the stock of the company, both preferred and common.

As bearing upon the question of the enforcibility of this contract the ownership of the shares of stock becomes a very important feature of the case, though we have not overlooked the distinction which exists as between the powers of a corporation as a legal entity and the rights of its stockholders, a distinction which was pointed out by the Court of Appeals in Buffalo L., T. & S. D. Co. v. Medina Gas Co. (162 N. Y. 76). This distinction must always be regarded where a question arises involving the rights of'creditors or minority stockholders; but it is not as important in a contest where rights of creditors are not involved, and the dispute is between two stockholders who themselves own all the capital stock. This fact of ownership of all the stock has, therefore, a bearing upon the rights of the litigants. Here the plaintiff sues upon a contract which was made between himself and the defendant Gans, who between them owned all the capital stock of the corporation, and, as stated, no rights of creditors or other stockholders being involved, it really in substance gets to be á litigation between the plaintiff and the defendant Gans, though in form the suit is brought against the corporation. The only persons interested in the corporation, and that will ultimately be injured or benefited by the success or failure of the plaintiff in sustaining the validity of the contract, will be the plaintiff or thé defendant Gans.-

Starting -with these premises we are to consider, in addition to the parties by whom it is made and to whom we have already alluded, what was the nature and purpose of the contract and what was the effect or result to the Giveen .Manufacturing Company, wdiich company the contract by its terms sought to bind. The making of the contract,- and the agreement by its terms that the plaintiff was to receive one-half- of the profits as testified to by the plaintiff, were not rebutted by any evidence given for the defendant upon the trial. The plaintiff produced evidence to sustain the allegations of his complaint, which was not rebutted, and which tended to show that about June 1, 1898, he devised a peculiar finish for a cotton cloth called khaki, which the defendants were willing to use in connection with a contract which they contemplated making with the 0. Kenyon Company, and that they agreed with him for the unusual services, outside of those for which he was paid by his own company, rendered and to be rendered by him in developing the quality and production of the cloth, promoting its sale and assisting the defendant in securing the Kenyon contract then under consideration, to pay him one-half of all profits accruing from the sale of the khaki as his share in said transactions; that he devoted himself to perfecting it and labored in promoting the sale and -assisted in making the-contract for a large .delivery of said material for the corporation known as the C. Kenyon Company; that as the result the Giveen Manufacturing Company manufactured and sold to the Kenyon Company a quantity which realized a total net profit of $23,403.10, one-half of which the plaintiff was entitled to, for which sum he demanded judgment.

Upon the trial, as stated, there was no attempt to contradict the plaintiff as to the making of the contract or its terms, out the defendants attacked the validity of the contract upon the ground that as. the plaintiff was a director of the Giveen Manufacturing Company and one of its managing officers, and was further employed as the manager of its department of manufacture, receiving a yearly salary, and as the business of the company was, that of a converter of cotton goods, it was the plaintiff’s duty under his employment to devise methods for the finishing and sale of cotton goods, and that he could not claim extra compensation for any services, however unusual, he might have performed in connection with devising a finish for the cloth which was afterwards manufactured and sold as khaki. If it had been shown that there were creditors or other stockholders interested in the company, there would be no doubt but such a contract was void, because it would be seeking a profit for services rendered to the corporation while plaintiff was under a contract to give his entire time and services to the business of the corporation. In addition plaintiff was an officer and director of this corporation.

The Court of Appeals in Bosworth v. Allen (168 N. Y. 165), in speaking of the action of directors, said: “ That principle is that the directors óf a corporation are charged with the duties of trustees and bo,und to care for its property and manage its affairs in good faith, and for a violation of that duty resulting in waste of its assets, injury to its property or unlawful gain to themselves, they are liable to account in equity the same as ordinary trustees. The corporation has the right to call upon them to account not only for all the property intrusted to their care, but also for all moneys furtively made by them at its expense.” ,

In considering the contract here made, however, notice must be taken of the testimony of the plaintiff that this business of khaki cloth was outside of the regular business of the company, and that plaintiff’s purpose originally was to have himself and Gans as individuals go into it and that at one time Gans agreed to supply all the ■ money therefor, but finally it was agreed that the cloth should be manufactured by the company, and that was the form which the transaction finally took, so that in the end the company obtained the profits which were derived under the Kenyon contracts. We assume that one may be connected with a corporation as manager, director, stockholder and employee, and yet be at liberty to employ his talents and ability after the hours of the business day which should be devoted tó the business, of the company, provided he does not employ them in a way inconsistent with his obligations to or detrimental to the business of the company. What is prohibited is that a director should not occupy an -inconsistent position in respect to the duties which he owes to the corporation. Nor should he, for his own gain or profit, make a contract for doing something which, considering his relation to the company, he was bound to do for it. N or should he attempt to sell to it property which he himself owns and, as a director, buy the same for the company ; nor should he sell the company’s property to himself so as to reap therefrom a profit. .'Ñor could the plaintiff, during his employment, engage in a business on the outside which was similar to or came in competition with the business of the company.

It will be noticed, therefore, that the case really turns upon whether .or not the plaintiff, upon his hiring with the plaintiff company, was already bound to perform the services for which he sues, and as to whether khaki cloth was a product for the manufacture and sale of which the company was organized. These, as we have endeavored to point out, were, we think, questions of fact for the jury. If the jury had found in favor of the corporation upon these questions, then clearly the contract would be invalid because without consideration. The question of whether he had faithfully observed the terms of his engagement with the company was called to the attention of the jury, and we must assume from their verdict that they resolved it favorably to the plaintiff.

To summarize, therefore, if there were interests other than those of the plaintiff and the defendant Gans, who own the company and between whom the contract was made, or had it appeared that dealing in khaki cloth was part of the business of the company, or if the corporation had not ratified the contract under which the plaintiff performed unusual services outside of his contract of employment, hot only in devising the peculiar finish for the cotton cloth, but also in arranging the contract with the Kenyon Company out of which the profits arose to the corporation, the plaintiff could not legally enforce it against the company. The learned trial judge, however, having presented these questions to the jury, we must, from their verdict, assume that all of them were resolved favorably to the plaintiff.

The other exceptions relied upon we have examined, and, having ■concluded that they are without merit, the judgment entered on the verdict and the order appealed from should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  