sation can be paid to a president for services outside of those imposed upon him by virtue of his official capacity,40 and services in saving the company's property from execution sales, in supervising work and disbursements, making contracts and employing men have been held to be outside of the usual duties of a president or director.41 A president may also be paid for services rendered as a salesman.42 An agreement properly entered into to pay for extra services is binding. In one case a president and the majority stockholders agreed to pay certain officers extra compensation for services in ef fecting a reorganization of the company, and it was held immaterial whether the reorganization scheme originated with such officers, whether the services were within the scope of their usual duties, or whether they were of permanent benefit to the company.43 The rule prohibiting officers from fixing the salaries of subordinates unless authorized operates similarly to prevent an officer from binding the corporation by a promise to pay a subordinate for extra services. Such a promise is not binding on the corporation unless ratified by it.44 The payment of compensation for extra services does not operate as a ratification or acquiescence of a continuous payment of such amounts under changed conditions, as where A vote of the stockholders or directors limiting the amount per diem of pay allowable to a director for special services does not apply to services rendered by a director in an entirely different capacity under employment by the company. Henry v. Rutland & B. R. Co., 27 Vt. 435. 40 Burton v. Lithie Mfg. Co., 73 Ore. 605, 144 Pac. 1149. 41 Gumaer v. Cripple Creek Tunnel Transportation & Mining Co., 40 Colo. 1, 122 Am. St. Rep. 1024, 13 Ann. Cas. 781, 90 Pac. 81. 42 Where it was agreed in the presence of other officers that a president was to enter on the duties of salesman at a minimum salary of $500 per month, and the evidence showed the performance of such duties of value to the company, a judgment of nonsuit was erroneous. Chiles V. United States Furniture Mfg. Co., 167 N. C. 574, 83 S. E. 812. A stockholder of a corporation who is also vice president, without a sal ary, may be employed as a salesman of the corporation at a reasonable salary and is entitled to his salary with the privilege of securing the same like any third person performing the same services. Friedrichs v. Friedrichs, Young & Taney, 126 La. 689, 52 So. 996. 43 Belcher v. Carstens, 87 Wash. 264, 151 Pac. 802. 44 So where a president promised an employee that he would be paid a percentage of bonds and some stock, if he continued in his position, but the promise was not assented to by the board of directors nor the executive committee, and the employee was paid his regular salary until the corporation was sold, when his services ended, such employee could not recover extra compensation on a quantum meruit, his contract not having been rescinded. Minshull v. New Jersey Terminal R. Co., 76 N. J. L. 684, 71 Atl. 663. See 2736, supra. the officer ceases his extra work; 45 and a resolution of an executive committee recommending an award to a president of a portion of the net profits of the company, during the pleasure of the board, does not operate as a binding contract, even though payments are made thereunder for a number of years.46 § 2765. Rights of de facto officers to salaries. A de facto officer is not entitled to the salary attached to an office when another person has the legal title to such office.4 47 But when it appears that a person has been elected or appointed to an office and that the stockholders have acquiesced in his discharge of the duties of the office, he is entitled to recover the compensation therefor, notwithstanding there was a mere irregularity in his appointment or election.48 As a general rule, when an officer de facto or a mere intruder has received the salary, fees and emoluments of an office, he is liable therefor to the officer de jure in an action for money had and received, 49 a rule which is frequently applied when public officers are involved.50 When a person who has been illegally elected or appointed to an office is neither a de jure nor a de facto officer, he is clearly not entitled to any salary or other compensation for performing the duties. of the office, in the absence of an estoppel against the corporation.51 45 Burton v. Lithie Mfg. Co., 73 Ore. 605, 144 Pac. 1149. 46 Young v. United States Mortgage & Trust Co., 156 N. Y. App. Div. 515, 141 N. Y. Supp. 364. 47 Waterman v. Chicago & I. R. Co., 139 Ill. 658, 15 L. R. A. 418, 32 Am. St. Rep. 228, 29 N. E. 689. Compare Salton v. New Beeston Cycle Co., [1899] 1 Ch. 775, 68 L. J. Ch. 371, where a director was not qualified. When a person claiming to be an officer of a corporation brings an action to recover the salary incident to the office, which he has no right to receive unless he has a legal right to the office, his title to the office is necessarily in issue and he must show that he is a de jure officer, or, at the least, that his appointment or election was merely irregular and that the discharge of the duties of the office has been acquiesced in by the stockholders. Waterman v. Chicago & I. R. Co., 139 Ill. 658, 15 L. R. A. 418, 32 Am. St. Rep. 228, 29 N. E. 689; State v. Tate, 70 N. C. 161. 48 Waite v. Windham County Min. Co., 37 Vt. 608, 36 Vt. 18. As to recovery of compensation on en implied contract, see § 2738, supra. 49 Waterman v. Chicago & I. R. Co., 139 Ill. 658, 15 L. R. A. 418, 32 Am. St. Rep. 228, 29 N. E. 689; Mayfield v. Moore, 53 Ill. 428, 5 Am. Rep. 52; State v. Tate, 70 N. C. 161. 50 See In re Berger's Estate, 152 Mo. App. 663, 133 S. W. 96; DeVigil v. Stroup, 15 N. M. 544, 110 Pac. 830; Howard v. Town of Port Royal, 85 S. C. 361, 67 S. E. 449. 51 McNulta v. Corn Belt Bank, 164 Ill. 427, 56 Am. St. Rep. 203, 45 N. E. 954; Waterman v. Chicago & I. R. Co., 139 Ill. 658, 15 L. R. A. 418, 32 Am. St. Rep. 228, 29 N. E. 689; State v. Tate, 70 N. C. 161. See § 1834, supra. § 2766. Termination of right to salary or compensation-Misconduct; neglect; fraud; absence from employment; vacations. An officer may forfeit all right to compensation because of fraud, misconduct or gross neglect in the management of the corporation or in the performance of his duties, both as against the corporation and its creditors.52 But the mere fact that the business is not made a success, as promised by the officer, does not defeat his right to compensation, there being no stipulation to that effect.53 And the mere disregard of by-laws and regulations of the corporation does not operate to defeat the right to compensation, if no fraud is shown and the officer otherwise performs his duties.54 Nor does the failure of an officer to account, when he has funds or other property of the corporation in his possession, prevent compensation, when he is not in default.55 The question of forfeiture of compensation because of an officer's failure to charge himself with items which should have been debited to him, must be governed largely by the circumstances of each particular case.56 The evidence may show an aban donment or waiver of salary, or of a portion of such salary.57 52 An officer of a corporation is not entitled to any salary where by his own act he has made it impossible for the company to enable him to earn it. Jones v. Vance Shoe Co., 92 Ill. App. 158. Where the officers of a corporation voted to themselves a salary, partly for services performed for the company and partly to deprive the mortgagors of the company's stock of their share of the stock in case they should succeed in their suit to redeem, it was held that they were entitled to no compensation at all, but must account for the whole salary. Eaton v. Robinson, 19 R. I. 146, 29 L. R. A. 100, 32 Atl. 339, 31 Atl. 1058. Directors or trustees of a bank who have been guilty of gross misconduct towards the creditors in refusing to permit them to inspect the bank subscription books, in taking no steps to collect and distribute the assets and in loaning the funds of the bank to stockholders and themselves will be deprived of compensation as against the creditors, on the ground of public 58 The performance of duties as an officer of another company does not defeat the right to compensation, if there is no conflict in the duties and when no acts prejudicial to the first employer are shown.5 Absence of an officer from his employment does not defeat his right to compensation where the corporation permits or acquiesces in such absence. If the corporation objects to the absence, it should dismiss the officer.59 And, clearly, absence of an officer on account of sickness does not defeat his right to full salary where he has procured the proper discharge of his duties by another officer authorized to act in his absence.60 An agreement to pay salary during the vacation of an employee or officer is based upon sufficient consideration from the fact that future services of the employee are to be rendered,61 and it cannot be held that such payments are invalid as a diversion or misuse of the company's funds.62 Such an agreement may be entered into by a president or other managing officer, where a subordinate officer stance, as the person involved was in effect contracting with himself. In addition, a claim for salary at the contract rate was abandoned by the action of the president in accepting a less salary for a long period of time, and he was estopped as against other stockholders and creditors from asserting the claim. Hansen v. Uniform Seamless Wire Co., 235 Fed. 616. 58 Mobile, J. & K. C. R. Co. v. Owen, 121 Ala. 505, 25 So. 612. Where a corporation receives the benefits of a plaintiff's services, it cannot claim that it is not bound to pay compensation therefor because services were rendered for another company. Ruttle v. What Cheer Coal Min. Co., 153 Mich. 300, 117 N. W. 168. The fact that an officer of a corporation held the same office in another company controlled by the same stockholders does not operate to debar him from claiming the salary duly voted to him as an officer of the first corporation. Dunne v. Portland St. R. Co., 40 Ore. 295, 65 Pac. 1052. 59 Finley Rubber Varnish & Enamel Co. v. Finley (N. J. Ch.), 32 Atl. 740. Where the by-laws of a corporation fix an officer's salary and make no provision for deductions in case of absence or failure to perform duties, the salary is an incident to the office, and one who has been duly elected and installed and has not been removed is entitled to the salary for the full term, although he may have been absent without leave and have failed to perform the duties during part of the term. Brown v. Galveston Wharf Co., 92 Tex. 520, 50 S. W. 126, rev'g (Tex. Civ. App.), 48 S. W. 41. The fact that an officer's salary or compensation is fixed at a certain sum per day does not necessarily make the right thereto dependent upon the performance of work on each day. Abbott v. Georgia & N. C. R. Co., 90 N. C. 462. 60 Davis v. Memphis City Ry. Co., 22 Fed. 883. 61 Birch v. Glasgow Sav. Bank, 114 Mo. App. 711, 90 S. W. 746; Missouri, K. & T. Ry. Co. v. Bryant, Tex. Civ. App. ད 78 S. W. 685. 62 Missouri, K. & T. Ry. Co. v. Tex. Civ. App. 178 S. Bryant, or employee appointed by him desires a vacation,63 or the payment of compensation to the officer after his vacation has commenced may give rise to a presumption that the acts of the managing officer were ratified by the directors.64 § 2767. Temporary suspension of work; lessening of duties; discharge of officers; resignation. The mere lessening of the duties of an officer does not abrogate an agreement to pay him a salary. is only when there is such a change in the business of the compar that the officer has no duties to perform, that the question of alc donment of a contract can arise.65 The right of an officer to salary where the work required of is temporarily suspended, depends upon the contract for his s ices. Thus it has been held that where the records of a corpor showed that a secretary was paid a salary as officer and no. the performance of extra services, the suspension of work, disp» with the necessity of the extra services, did not operate to a the right to recover salary.66 Usually an officer cannot be discharged without proper gr therefor, and the corporation will be liable for a breach of e in the case of an improper discharge.67 The payment of d. for breach of a contract employing an officer is improper wi holds his position at the pleasure of the board of directors.68 66 Bligh v. People's Packing Co., 192 Ill. App. 83, in which case the evidence was held not to show that a secretary agreed to waive his salary during a period when the corporation temporarily suspended business, the books showing a credit of such salary, and such credit being with the knowledge of the president. 192 Ill. App. 83. 67 In order to warrant the discharge of a manager of a corporation employed for a fixed time at a fixed price, before the expiration of the time agreed upon, there should exist grounds of complaint against If a corporation is li As to the removal 68 Where a general corporation was an ag meaning of West Virgi § 53, holding his p |