Bailey v. Interstate Airmotive

Decision Date14 March 1949
Docket Number40851
Citation219 S.W.2d 333,358 Mo. 1121
PartiesGeorge H. Bailey, Plaintiff-Appellant, v. Interstate Airmotive, Inc., W. B. Dallas, Parker Snead and William S. Snead, Defendants-Respondents
CourtMissouri Supreme Court

Motion for Rehearing or to Transfer to Banc Overruled April 11 1949.

Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Defendants' appeals dismissed and orders granting a new trial. Affirmed.

R H. McRoberts, Bryan, Cave, McPheeters & McRoberts for defendants-appellants Parker Snead and William S. Snead.

(1) Plaintiff cannot recover in quantum meruit against defendants Parker Snead or William S. Snead for services rendered to the defendant corporation without proof of an express contract on their part to compensate him for such services. All of the services for which plaintiff seeks compensation were rendered to the corporation and not to defendants Parker Snead or William S. Snead. There was an express contract between the defendant corporation and plaintiff providing for the corporation to compensate plaintiff for his services. Ward v. Davidson, 89 Mo. 445. (2) The defendant corporation having expressly contracted with plaintiff to compensate him for his services, no obligation on the part of a third person to compensate him for the same services will be implied in the absence of proof of an express agreement to that effect on the part of such third person. 28 Ruling Case Law, p. 668; 71 C.J. pp. 37, 83, 113; 28 R.C.L. 691; Perles & Stone, Inc., v. Childs Co., 340 Mo. 1125 104 S.W.2d 361; Boldwin v. Fowler, 217 S.W. 637; Stanley Patch Lumber Corp. v. Barry, 265 N.Y.S. 879, 148 Misc. 376; Bancroft v. Wisner, 8 La. App. 357; Reed v. Baggot, 5 Ill.App. 257; Martin v. Slimp, 138 S.W. 451; Walker v. Brown, 28 Ill. 378, 81 Am. Dec. 287; Moore v. Mason & Hanger, 35 N.Y.S. (2d) 687. (3) Plaintiff's own testimony not only failed to show any express contract on the part of either Parker Snead or William S. Snead to compensate him for services rendered to the defendant corporation, but affirmatively established the fact that there was no such contract. An express contract is one the terms of which are declared by the parties, either orally or in writing, at the time it is made. 17 C.J.S. 315-316; 12 Am. Jur. 498; 1 Williston on Contracts, Revised Ed. p. 6. (4) Plaintiff cannot recover against either Parker Snead or William S. Snead on the theory that the corporate entity of defendant Interstate Airmotive, Inc., should be disregarded. Plaintiff's petition contained no allegation of facts justifying the application of this doctrine, nor does it pray that the corporate entity be disregarded. 1 Fletcher on Corporations, Chap. 2, sec. 41, p. 142; National Plumbing Supply Co. v. Torrenti 237 Mo.App. 570, 175 S.W.2d 947; Booth v. Scott, 276 Mo. 1; Meir v. Crossley, 305 Mo. 206; Zachra v. American Mfg. Co., 179 Mo.App. 683; Martin v. Development Co. of America, 240 F. 42; Austin v. Tecumseh Natl. Bank, 49 Neb. 412, 35 L.R.A. 444, 68 N.W. 628; Minifie v. Rowley, 187 Cal. 481, 202 P. 673; California L. & S.S. Inc. v. Schultz, 105 Cal.App. 471, 287 P. 980; Norins Realty Co. Inc. v. Consolidated A. & T.G. Co., 182 P.2d 593; Meridale Dairies, Inc., v. Dumas, 138 Fla. 323, 189 So. 391. (5) Plaintiff must exhaust his remedies against the defendant corporation, which is primarily liable, before he can proceed against the stockholders, officers or agents, who are only secondarily liable. 18 C.J.S., pp. 1388, 1390-1395; 19 C.J.S. 295. (6) Disregarding the corporate entity would not prove or establish the existence of an express contract on the part of either Parker Snead or William S. Snead to personally compensate plaintiff for services rendered to the corporation, and plaintiff cannot recover in quantum meruit without proof of such contract. Authorities under Item (2) supra. (7) Where a motion for a new trial specifies several grounds, this Court, on an appeal from an order sustaining such motion on certain specified grounds, may properly consider whether or not the motion should have been sustained on one or more other grounds. 3 Am. Jur. 370; Sakowski v. Baird, 334 Mo. 951; 69 S.W.2d 649; Spears v. Hughes, 346 Mo. 421, 142 S.W.2d 3; Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709, 14 L.R.A. 565; Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 105 A.L.R. 1063; Schreiner v. St. Louis, 203 S.W.2d 678; Warren v. Cowden, 167 Mo.App. 485, 151 S.W. 501.

Lewis, Rice, Tucker, Allen & Chubb, R. Walston Chubb and Lyle M. Allen, Jr., for plaintiff-appellant.

(1) The trial court abused its discretion in granting a new trial to defendants upon any or all of the grounds upon which a new trial was granted; an order granting a new trial will be reversed on appeal when the trial court has abused its discretion. Ullom v. Griffith, 263 S.W. 876; McDonald v. Heinemann, 141 S.W.2d 177; Heeter v Boorum & Pease Loose Leaf Book Co., 237 S.W. 902; Aeolian Co. of Missouri v. Boyd, 138 S.W.2d 692. (2) The only evidence in defense of plaintiff's case is the testimony of the individual defendants themselves; the testimony of the individual defendants was, therefore, not entitled to credence as against the overwhelming evidence adduced by plaintiff in support of plaintiff's case. Vette v. Hackman, 237 S.W. 802. (3) The jury would have been fully justified in disregarding the testimony given by the individual defendants themselves, particularly because there were unexplained discrepancies in their testimony given at the trial and because there were unexplained discrepancies between their testimony given at the trial and their testimony on deposition. Truitt v. Rothschild-Greenfield Co., 32 S.W.2d 770; Curch v. Chicago & Alton R. Co., 119 Mo. 203, 23 S.W. 1056; Walton v. A.B.C. Fireproof Warehouse Co., 235 Mo.App. 939, 151 S.W.2d 494; Gerdes v. Christopher & Simpson Architectural Iron & Foundry Co., 124 Mo. 347, 27 S.W. 615; State v. Hamilton, 304 Mo. 19, 263 S.W. 127; Pulitzer v. Chaplin, 337 Mo. 298, 85 S.W.2d 400. (4) The jury's verdict for $ 45,000 is not so excessive as to indicate bias, passion, or prejudice on the part of the jury, for $ 39,800 damages were sought and the expert testimony that the value of plaintiff's services was about $ 40,000 was uncontradicted; and there was ample additional evidence of value in proof of valuable services rendered by plaintiff. Plaintiff has remitted $ 5,200. Joice v. Missouri-K.-T. R. Co., 189 S.W.2d 568, 161 A.L.R. 383; Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603, 158 A.L.R. 1402; Middendorf v. Schrieber, 150 Mo.App. 530, 131 S.W. 122; Lineker v. Missouri-K-.T.R. Co., 142 S.W.2d 356; Stokes v. Wabash R. Co., 197 S.W.2d 304; Beall v. Kansas City Rys. Co., 228 S.W. 834; Russell v. Mo. Pac. R. Co., 316 Mo. 1303, 295 S.W. 102, certiorari denied 275 U.S. 551, 72 L.Ed. 421, 48 S.Ct. 114; Merrill v. St. Louis, 12 Mo.App. 466; Rosenfeld v. Siegfried, 91 Mo.App. 169. (5) The trial court abused its discretion in granting defendants a new trial on the ground that the verdict was the result of emotion and sympathy for plaintiff, and poison and prejudice against defendants, generated by plaintiff's act of crying, or appearing to cry, on the witness stand or on the ground that the court erred in failing to grant defendants' motion to discharge the jury and to declare a mistrial because of this occurrence; this occurrence could not conceivably have prejudiced the jury in favor of plaintiff and against defendants; any possible prejudice against defendants because of the occurrence was cured by the trial court's admonition to the jury to disregard it given at the request of defendants' counsel. McDonald v. Heinemann, 141 S.W.2d 177; State ex rel. Mo. Mut. Ass'n. v. Allen, Judges, 336 Mo. 352, 78 S.W.2d 862; Harrison v. Kansas City Elec. Co., 195 Mo. 606, 93 S.W. 951, 7 L.R.A. 293; Evans v. Mo. Pac. R. Co., 342 Mo. 420, 116 S.W.2d 8; Holman v. Terminal R. Ass'n., 125 S.W.2d 527; Grott v. Johnson, Stephens & Shinkle Shoe Co., 2 S.W.2d 785; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Balsano v. Madden, 138 S.W.2d 660; Moses v. Kansas City Pub. Serv. Co., 188 S.W.2d 538. (6) The trial court correctly denied the motions of the individual defendants, as well as those of defendant Interstate Airmotive, Inc., for a directed verdict and for judgment; for plaintiff established by overwhelming evidence an express contract or a contract implied in fact (as distinguished from a quasi-contract or one implied in law) between plaintiff and the individual defendants to compensate plaintiff for his services and a breach thereof by the individual defendants in wrongfully discharging plaintiff. Plaintiff could, therefore, treat the contract as rescinded and could sue in quantum meruit to recover the reasonable value of his services. Ehrlich v. Aetna Life Ins. Co., 88 Mo. 249; Glover v. Henderson, 120 Mo. 367, 25 S.W. 175; Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1143; Kansas City Structural Steel Co. v. Athletic Building Ass'n., 297 Mo. 615, 249 S.W. 922; Kennerly v. Sommerville, 64 Mo.App. 75. (7) To prove an express contract between plaintiff and the individual defendants, it was not necessary for plaintiff to prove that all of its terms were actually expressed by the parties orally or in writing; an express contract can be created, though implied in fact from the conduct of the promisors, where the promisee justifiably understands therefrom that the promisors intended to contract. A contract implied in fact is in legal effect an express contract, as distinguished from a contract implied in law, and an express contract so implied in fact between plaintiff and the individual defendants to compensate plaintiff for his services would support plaintiff's recovery against the individual defendan...

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