THERRIAN v. GENERAL LABORATORIES, INC.

Calendar No. 57, Docket No. 49,836.

372 Mich. 487 (1964)

127 N.W.2d 319

THERRIAN v. GENERAL LABORATORIES, INC.

Supreme Court of Michigan.

Decided April 6, 1964.


Attorney(s) appearing for the Case

Charles A. Larnard, Jr., for plaintiff.

Seymour I. Rosenberg, for defendant.


SOURIS, J.

Plaintiff filed suit in assumpsit to recover from defendant General Laboratories, Inc., the difference between salaries defendant's board of directors authorized to be paid plaintiff over a period of years and the salaries actually received by him as an officer of defendant corporation. Plaintiff also sought to recover a loan which he allegedly made to defendant. The trial court sitting without a jury found that plaintiff was entitled to the difference between total salary authorized and salary received, reduced by the amount of certain bonuses and automobile allowances plaintiff received. He found, however, that plaintiff had not proved by a preponderance of the evidence that defendant was indebted to him on the alleged loan obligation. From the judgment entered against it, defendant has appealed, its motion for new trial having been denied.

Defendant first argues that, as a matter of law, its corporate resolutions authorizing specified salaries to be paid plaintiff were not alone sufficient to create a contractual obligation upon it to pay such salaries. Whatever legal consequence a corporate board's resolution, considered alone, may have, is not realistically pertinent to the issue before us. This board's resolutions were known to plaintiff and were acted upon by him. When we consider not only the fact that the defendant's board authorized payment of specified salaries to plaintiff, but also the fact that plaintiff was fully advised thereof and the fact that he continued thereafter in defendant's employment, the trial judge was entitled to find that defendant was contractually bound to pay plaintiff at the salary levels fixed by the resolutions. In re Wood's Estate, 299 Mich. 635, 651. The fact that at the end of each fiscal year the corporate books did not indicate an accrual of the difference between plaintiff's authorized salary and that which he actually received is not alone sufficient to relieve defendant of its liability to plaintiff for the full amount of his authorized salary.

Defendant next argues that plaintiff waived any claim which he might have had for accrued salary. The trial judge found that plaintiff had not waived his rights, basing such finding upon testimony that at different times during his employment plaintiff requested payment of the balance of his authorized salary and that the company's president and another officer assured plaintiff that he would be paid his accrued salary when the company was able to do so.* Although there was conflicting testimony on this point, we cannot say that it preponderated against that relied upon by the trial court. The waiver of an advantageous right will not lightly be inferred. Beloskursky v. Jozwiak, 221 Mich. 316, 324, 325.

Defendant also argues on appeal other issues which were not relied upon in the trial court. Since defendant failed to raise such issues below, they are not available to it on appeal. Young v. Morrall, 359 Mich. 180, 187. Similarly, because plaintiff has not cross-appealed, we shall not consider plaintiff's countering contentions that the trial court erred in deducting from his salary claims the sums he received as bonuses and for automobile allowances and in ruling against him on his claim that defendant was obligated to him on a loan transaction. St. John v. Nichols, 331 Mich. 148, 158.

Affirmed. Costs to plaintiff.

KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SMITH, and O'HARA, JJ., concurred.

ADAMS, J., took no part in the decision of this case.

FootNotes


* At trial defendant's president testified: "The purpose of the corporation is to make a profit. We did that."

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