Moore, Woodbury*fn* and Smith, Circuit Judges.
WOODBURY, Senior Circuit Judge:
The plaintiff Donald Quick, referred to as the plaintiff hereinafter for the rights of his wife, the other plaintiff, are derivative, was employed by the defendant as its treasurer on October 1, 1947. In 1949, while continuing as treasurer, he became a vice president and a director of the defendant's subsidiary corporations and divisions and on November 29, 1954, he became the defendant's president. He was also a director and a stockholder. In June, 1960, the plaintiff for the first time entered into a written employment contract with the defendant. Under this five-year contract, retroactive to December 1, 1959, the plaintiff's salary was fixed at $30,000 per year plus an annual bonus of 2% of the defendant's pre-tax profits in excess of $500,000.
On February 1, 1961, the plaintiff and the defendant entered into a contract variously described as a "retirement agreement," a "deferred compensation agreement" or a "pension plan." In March, 1964, eight months before the plaintiff's employment contract was to expire, three men, Edward Krock, Robert Huffines and Victor Muscat, referred to in the record as the BSF group, acquired a controlling interest in the defendant's stock and at once became directors and high executive officers of the defendant corporation. The following minute appears in the record of a meeting of the defendant's board of directors held on November 19, 1964:
"Salary of President Quick. Mr. Muscat stated that the salary contract of President Quick would expire on November 30, and he, therefore, suggested that Mr. Quick confer with the chairman of the finance committee to work out a new contract, and that in the meantime Mr. Quick continued [sic] to be paid in accordance with the terms of his present contract."
Negotiations between the plaintiff and the chairman of the defendant's finance committee, Mr. Krock, did not begin at once but they met for a full day of discussion on February 4, 1965, at Mr. Krock's home in Massachusetts. The testimony as to what actually took place at that conference is in some conflict as to details. It is evident, however, that no agreement was reached as to the plaintiff's future employment. The plaintiff's testimony not categorically disputed by Krock is that Krock offered the plaintiff future employment by the defendant at a salary of $12,500 per year plus the same bonus as before saying he and his two associates were taking no more than that apiece for their services and were doing as much for the defendant as the plaintiff. The plaintiff declined further employment on the terms offered, characterizing them as unfair, and left. No further progress was made over the telephone the next day but the parties agreed to meet again.
On February 10, 1965, on the eve of the annual meeting of the defendant's stockholders, the plaintiff met again with Krock in his hotel room in New York. At that time the parties did no more than reiterate their respective positions but they did agree to meet once more the next morning before the stockholders' meeting. They so met with counsel for the defendant also present. At that time the plaintiff was informed that "his resignation had been accepted" as of the night before and that in consequence he would not be nominated for reelection as president or a director. At that announcement the plaintiff said that he would accept the salary offered pending consultation with his attorney to see what his rights were, if any. Thereafter the plaintiff continued to report at his office and to receive his salary until February 15 when he was taken off the company payroll and his telephone and furniture were removed from his office.
The plaintiff bases his right to recover under the retirement plan on its preamble extolling his long service with the Company, the value of his services to the Company and expressions of a desire by the Company to retain his services until normal retirement age and thereafter in an advisory capacity for which it is recited the Company "* * * is willing to offer Quick an incentive * * * in the form of a retirement compensation and death and disability benefits" and on two specific provisions of the agreement. These are:
"1. Continuation of Employment. Quick shall continue in the employ of the Company, upon the same terms as heretofore, until the termination of his presently existing employment contract (November 30, 1964), and until such later date as shall be mutually agreed upon in new employment contracts to be subsequently entered into.
"5. Termination of Employment Prior to Retirement.
(a) Termination By The Company.
In the event that Quick's employment is terminated by the Company for any reason whatsoever other than for indictable acts against the Company, payments to Quick, his spouse, and/or his Estate shall be made immediately upon such termination in accordance and under the terms set forth in Paragraph 2, supra, excepting therefrom the minimum annual payment of $12,000 provided in the second sentence of said paragraph.
(b) Termination By Quick.
In the event that Quick voluntarily terminates his employment with the Company, the Company shall be under no obligation to make any of the ...