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Perry v. Nevin Hotel Co.

OPINION FILED NOVEMBER 14, 1952

EDWARD S. PERRY, PLAINTIFF-APPELLEE,

v.

NEVIN HOTEL COMPANY, DEFENDANT-APPELLANT.



Appeal by defendant from the Circuit Court of Sangamon county; the Hon. DEWITT S. CROW, Judge, presiding. Heard in this court at the October term, 1952. Affirmed. Opinion filed November 14, 1952. Rehearing denied January 23, 1953. Released for publication January 23, 1953.

MR. PRESIDING JUSTICE WHEAT DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 23, 1953

Defendant, Nevin Hotel Company, an Illinois corporation, appeals from judgments of the circuit court of Sangamon county, entered on verdicts for plaintiff in the amount of $11,000 and $1,602, respectively, returned in an action for damages resulting from termination of an alleged employment contract and for three months' salary under the contract.

Count I of the complaint alleged, and defendant by its answer, admitted that on May 15, 1947, plaintiff and one John B. Nevin, hereinafter referred to as Nevin, entered into a written agreement whereby he employed plaintiff as manager of the Leland Hotel in Springfield, Illinois, at a yearly salary of $11,000 plus expenses and quarters, commencing upon the date when Nevin, or any corporation formed by him, should take over the hotel; that defendant was incorporated on August 6, 1947, disposed of the hotel on September 1, 1948, and on October 8, 1948, notified plaintiff that his employment was terminated.

It was further alleged but denied by defendant that pursuant to the above mentioned agreement, plaintiff entered into the employ of defendant and continued therein from August 26, 1947, to October 8, 1948, and performed all terms and conditions of the above mentioned agreement, the substance of which appears from the record to be as follows:

"This agreement made this 15th day of May, 1947, between John B. Nevin . . . hereinafter called Owner, and Edward S. Perry . . . hereinafter called Manager, witnesseth:

Whereas, the Owner has entered into a contract for the purchase of the Leland Hotel at Springfield, Illinois, and proposes to operate the same, either as an individual or by a corporation organized for that purpose, to be controlled by Owner; and

Whereas, Manager has managed and operated the Leland Hotel for the past twenty-five years; and

Whereas, the Owner desires to employ said Manager to continue as manager of said Leland Hotel for himself, individually or the corporation if and when organized by him, to operate said hotel as aforesaid;

Now, therefore, for and in consideration of the premises and the acceptance of this agreement by Manager, it is mutually agreed as follows:

1. In case Owner elects not to organize a corporation to own or operate said hotel, the provisions of this agreement shall extend and apply to him in case he operates the same as an individual, or to any trustee or other entity which may operate the same, directly or indirectly, for him or in his behalf; . . .

8. Manager shall devote his time and best energies to the management of said hotel and shall be subject in all things to the supervision of Owner, or to any corporation organized and controlled by him for the purpose of operating said hotel, or to any trustee or other entity which may operate the same, directly or indirectly, for him or in his behalf as the case may be;

9. This contract of employment of Manager shall be for a period of five years commencing upon the date that said Owner or any corporation formed by him takes possession and control of the Leland Hotel;

10. If during the term of this contract Owner sells or otherwise disposes of said hotel, other than to a corporation organized and controlled by him for the purpose of owning or operating said hotel, or to a trustee or other entity to own or operate the same for him or in his behalf, he may terminate this agreement on payment to Manager of one year's compensation from the date of termination;

11. Owner agrees that this contract shall be ratified, approved and accepted by any corporation formed by him for the purpose of operating said hotel, or by any trustee or other entity or business unit which may operate the same, directly or indirectly, for him or in his behalf."

In addition to the foregoing, the agreement in question gave to plaintiff general powers of management, provided for his compensation as alleged in the complaint and for additional compensation to be agreed upon by the parties, in the event the management acquired additional hotel property.

Count I further alleged that defendant ratified and adopted the foregoing agreement and assumed the obligations therein imposed upon Nevin by acceptance of and payment for services rendered by plaintiff after defendant's incorporation, that defendant, upon notifying plaintiff of his discharge, did not tender one year's compensation as provided in the foregoing agreement and prayed judgment for $25,000.

Count II of the complaint further alleged defendant's refusal to pay plaintiff's salary, pursuant to the terms of the foregoing agreement, for the months of August, September and October, 1948, and prayed judgment for $3,000.

Defendant's answer denied that it had ratified and adopted the foregoing employment agreement and as separate affirmative defenses, set up the statute of frauds; lack of consideration between plaintiff and defendant; termination of the agreement, as one for personal services, upon the death of Nevin; and further alleged that any acts of ...


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