Bell v. Peper Tobacco Warehouse Co.

• Decision Date: 11 June 1907
• Citation: 103 S.W. 1014,205 Mo. 475
• Parties: BELL v. PEPER TOBACCO WAREHOUSE CO.
• Court: Missouri Supreme Court

103 S.W. 1014

205 Mo. 475

BELL v. PEPER TOBACCO WAREHOUSE CO.

Supreme Court of Missouri. Division No. 2.

June 11, 1907.

1. MASTER AND SERVANT — CONTRACT OF EMPLOYMENT — CORPORATE RESOLUTION — CONSTRUCTION.

A corporate resolution to compensate plaintiff as manager for the first year at a salary of $1,500, for the second year $1,800 and "for the present year $2,500," the third year having terminated prior to the passage of the resolution, should be construed as providing only for the payment of past services, so that plaintiff's continuation in the same service after the resolution was passed raised no presumption that the services thereafter rendered were rendered on the same terms as for the third year of plaintiff's employment.

2. CORPORATIONS — OFFICERS — SALARY — BURDEN OF PROOF.

Where, in an action against a corporation for services, plaintiff elected to rely on an express contract, the burden was on him to show that the corporation expressly agreed before the services were rendered to pay him the annual salary claimed so long as he continued to act as the company's manager; the company, in the absence of a specific agreement as to the amount of plaintiff's salary, being liable only for the reasonable value of his services rendered outside the scope of his duties as an officer and director of the corporation.

3. MASTER AND SERVANT — ACTION FOR SERVICES — PLEADING — DEFENSES.

Where, in an action against a corporation for services performed as manager, the complaint pleaded a valid implied contract, defendant could not rely on evidence that, during the period of plaintiff's service, he held a public office for which he received a salary and used a portion of defendant's building as his office; no such defense having been specially pleaded.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by Nicholas M. Bell against the Peper Tobacco Warehouse Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Klein & Hough, for appellant. Joseph S. Laurie, for respondent.

BURGESS, J.

This is a suit to recover $18,684.87, alleged to be balance due plaintiff on account of salary as manager of defendant from May 1, 1889, to February 15, 1904, at the rate of $1,500 for the first year, $1,800 for the second year, and $2,500 for the third year, and at the rate of $2,500 per year from May 1, 1892. The petition originally contained two counts, the first upon an alleged contract, and the other upon quantum meruit; but the plaintiff, after defendant's motion for nonsuit at the close of plaintiff's case had been overruled, and before defendant had begun the introduction of its evidence, dismissed as to second count, electing to stand upon the alleged contract alone. The answer to the first count admits defendant's incorporation, and that plaintiff was its manager for three years, from May 1, 1889, but alleges that he had been paid in full for his services as such manager for said period, and denies all other allegations of said count. Further answering, defendant says that, if plaintiff did act as manager after the expiration of said three years, he was a director and vice president of the corporation, and neither by the charter, by-laws, or by any action of the board of directors, or by an agreement between him and the board, was he entitled to receive any remuneration for such services. Defendant, by way of counterclaim, prayed judgment against plaintiff for $4,300, which it alleged to be the reasonable rental value of a portion of defendant's warehouse at Twelfth and Market streets in the city of St. Louis, which defendant alleged plaintiff occupied as excise commissioner of the city of St. Louis from July 1, 1893, to January 31, 1897, a period of 43 months, at $100 per month. Defendant further alleged that its books were in the sole charge of plaintiff, and none of defendant's officers, except plaintiff, knew until after this suit was brought that said rent had not been paid. The reply is a general denial, together with a plea of the statute of limitations as to said counterclaim. A jury was waived, and a trial had before the court, resulting in a judgment in favor of plaintiff for the amount sued for, with interest from the date of suit, aggregating $19,394.49, and in favor of plaintiff on the counterclaim, from which judgment defendant appeals.

The evidence showed that plaintiff had been in business in St. Louis for many years prior to 1889, and was experienced in the tobacco business. In the year 1888, being then superintendent of foreign mails of the United States, at a salary of $3,000 per annum, with office in Washington, D. C., he married the daughter of Christian Peper, then president of the defendant company, a Missouri corporation, doing a general tobacco warehouse and commission business at Twelfth and Market streets, in the city of St. Louis. In April, 1889, plaintiff resigned his said position, and returned to St. Louis; his return being at the request of Christian Peper. On May 1, 1889, plaintiff became manager of the defendant company, with full control of the business. The company at that time was doing no business at all except storage, and this on a very small scale, deriving an income therefrom of about $60 per month. The working force consisted of a superintendent, with a salary of $1,800 per year; a bookkeeper, with a salary of $1,500 per year; and three or four laborers. Plaintiff discharged the superintendent, and at his request the office of superintendent was abolished by the board of directors; plaintiff as manager assuming such duties. Other changes were made by him for the purpose of decreasing the expenses of carrying on the business. As a result of plaintiff's management, the storage business was largely increased, and the buying and selling branch of the business revived, and at the end of the first year there was a net profit of $10,600. The business continued to increase under plaintiff's management, and Christian Peper transferred to him five shares of the warehouse company's stock, and caused him to be elected director and vice president on June 2, 1890. The said five shares were immediately afterwards transferred back to Christian Peper. No definite arrangement had been made with plaintiff as to salary when he entered into the employ of defendant on May 1, 1889, but during the three following years he had drawn and charged himself on the books of the warehouse company such sums as he needed from time to time. The amount thus drawn for the first year was $900, for the second year $1,550, and for the third year $1,675. Such was the situation when, at a meeting of the board of directors, held June 9, 1892, "on suggestion of the president, a motion by F. C. Peper, seconded by C. Peper, Jr., to compensate N. M. Bell, the manager, for the first year a salary of $1,500, for the second year $1,800, and for the `present year' $2,500, was carried," as appeared by the minute book of the defendant company. At that time the directors of the company were Christian Peper, Charles G. Peper, Christian Peper, Jr., and N. M. Bell, and it would appear that Christian Peper owned all the stock of the company except such as owned by his said sons. It appears from the evidence that Christian Peper treated the warehouse company property as his own. He was at that time, and had been for years, engaged in the business of manufacturing tobacco, and had an account on his books with the warehouse company, wherein he charged and credited as the case might be the cash advanced for, and received by him from, the warehouse company. When the year commencing May 1, 1892, expired, plaintiff's account on the books of the warehouse company showed that during that year he had drawn sums aggregating $2,184.50. Nothing was said to him by Christian Peper or any one else in behalf of the corporation at the expiration of said year, or at any other time, as to salary, and he remained in the employment of the warehouse company as manager until February 15, 1904. The only reference to "salary" is in the above-quoted resolution from the minute book of the company; but it would not appear that plaintiff in any year, from first to last, drew as much as $2,500. The following summary, attached to plaintiff's petition, shows the aggregate amount of cash drawn by him each year during his service as manager:

                Year ending May 1, 1890.......... $   900 00
                Year ending May 1, 1891..........   1,550 00
                Year ending May 1, 1892..........   1,675 00
                Year ending May 1, 1893..........   2,184 50
                Year ending May 1, 1894..........   1,119 05
                Year ending May 1, 1895
                Year ending May 1, 1896
                Year ending May 1, 1897..........         90
                Year ending May 1, 1898..........     467 80
                Year ending May 1, 1899..........   1,447 35
                Year ending May 1, 1900..........   1,740 00
                Year ending May 1, 1901..........   1,260 00
                Year ending May 1, 1902..........   1,200 00
                Year ending May 1, 1903..........   1,350 00
                From May 1, 1903, to February 15
                 1904 (9½ months).........   1,700 00
                                                  __________
                                                  $16,594 60
                

Plaintiff introduced in evidence the minutes of a meeting of the board of directors of defendant company of date June 6, 1894, which recited that the report of "N. M. Bell. manager," had been submitted by him to the board and ordered filed. This was the first meeting of the board after the said meeting of June 9, 1892. From the commencement of plaintiff's management, he, by direction of Christian Peper, turned over to the latter, daily, all the cash receipts of the company and at short intervals, about once a week, or oftener, as he required money to pay bills and operating expenses, he would submit to Christian Peper a statement, on the printed letter head of the company, whereon was printed the name of "Nicholas M. Bell, Manager," and make an order or requisition on Christian Peper for the amount of cash needed for...