The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is an action by Abbott Redmont Thinlite Corp. (hereinafter "Abbott") against its former president, Rudolph R. Redmont (hereinafter "Redmont"), and Redmont's present company, Circle Redmont Corp. (hereinafter "Circle"), to recover profits earned by Circle on certain contracts which plaintiff contends were "business opportunities" of plaintiff, concerning which defendants had no right to compete.
The court's jurisdiction rests on the provision of 28 U.S.C. § 1332 (diversity of citizenship), the action having been removed from New York Supreme Court, Bronx County, pursuant to 28 U.S.C. § 1441.
Prior to the entry of the pretrial order, a demand for temporary injunctive relief was withdrawn. Thus, only a claim for damages remains. This court directed that the issue of liability be tried first pursuant to Rule 42(b) of the Federal Rules of Civil Procedure and the case was tried before the court without a jury.
After hearing the testimony of the parties and examining the pleadings, the exhibits and the proposed findings of fact and conclusions of law submitted by counsel, I make the following Findings of Fact and Conclusions of Law:
1. Plaintiff is a corporation incorporated under the laws of the State of New York (Complaint, par. 1; Answer, par. 1).
2. Defendant Redmont is a resident of the State of Connecticut. Redmont was the president of plaintiff from its formation to April 1, 1966 (Complaint, par. 3; Answer, par. 6).
3. Defendant Circle is a corporation incorporated under the laws of the State of Connecticut. Since its inception it has been engaged in the sale, manufacture and installation of rooflights and toplights (Tr. 62).
4. Redmont, since May, 1966, has been the president of and chief operating officer of defendant Circle (Px. 14, p. 4).
5. Prior to joining Abbott, Redmont had been in the skylight business for approximately fifteen years and immediately prior to joining the plaintiff was engaged in the distribution, through his own company, Redmont Structures, of thinlite, a glass wall curtain made by Owens-Illinois (DX A). Redmont Structures also distributed toplights (Tr. 62-64).
6. From the time that Abbott was formed in 1959 until Redmont left it at the end of March 1966, Redmont served under an oral contract as president of plaintiff-corporation on a fixed salary plus expenses. This oral contract contained no covenant against competition in the event that defendant should ever leave the employ of plaintiff-corporation (Tr. 72). Redmont was not a director and owned no stock, all of the stock thereof being owned by Abbott Glass Company (Tr. 70-72, 105). Redmont's duties while he was president of Abbott were generally to promote the products sold by Abbott and to get those products specified by architects on construction projects; to prepare bids for Abbott for submission to general contractors on those jobs where Abbott's products were specified; and, after submitting such bids, to contact general contractors or other customers involved to obtain contracts for the furnishing and installation by Abbott of the materials previously specified (Tr. 100 et seq.).
7. Prior to the time he left plaintiff-corporation, Redmont on behalf of Abbott, performed promotional duties and submitted bids to general contractors and customers for the purpose of getting Abbott's products specified and obtaining contracts for Abbott for the installation of toplights and rooflights on the following jobs which form the basis of this action:
A. Plainfield Library Toplight
B. Oakland High School Toplight
C. Junior High School 144 Toplight
D. Riverdale Girls School Toplight
E. Manhattan Pumping Station Rooflight
(Tr. 16-20, 118).
8. Both toplights and rooflights are types of skylights. Rooflights consist of heavy glass blocks placed in concrete grids and sealed with a tar and sulphur base (Tr. 68). They are anti-corrosive and are used primarily in sewage plants (Tr. 97-98). Toplights are a type of skylight consisting of heavy glass blocks in interlocking aluminum grids sealed with thiokol (Tr. 68). They are used primarily in schools and other public institutions (Tr. 68, 98).
9. With respect to the rooflights, Abbott bought the glass blocks directly from Owens-Illinois (Tr. 38) and then installed these rooflights ...