Bevier Black Diamond Coal Co. v. Watson
| Decision Date | 04 April 1904 |
| Citation | 80 S.W. 287,107 Mo.App. 451 |
| Parties | BEVIER BLACK DIAMOND COAL COMPANY, Plaintiff in Error, v. WILLIAM S. WATSON, Defendant in Error |
| Court | Kansas Court of Appeals |
Error to Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.
Judgment affirmed.
Harkless O'Grady & Crysler for plaintiff in error.
(1) No salary can be allowed to defendant or recovered by him for acting as treasurer of the corporation in the absence of some provision of the charter of the company, its by-laws or resolutions of its directors authorizing and fixing the same. Taussig v. Railroad, 166 Mo. 28; Besch v Carriage Co., 36 Mo.App. 333; Renners v. Schiro Sekey, 70 Mo.App. 364; Pfeiffer v. Landsburg, 44 Mo.App. 59. (2) The treasurer could not take the moneys in his hands, which he held as servant and custodian of the company, and apply them on his own claim for salary, even if the company owed him, to the exclusion of other claims. Greenville v. Reis, 54 Ohio St. 549; Emporium v Emeric, 54 Ill. 345.
Dysart & Mitchell for defendant in error.
(1) An officer of a corporation is entitled to a salary when allowed and fixed by the company or its board of directors. This is elementary. Funston v. Company, 67 Mo.App. 559. (2) The set-off and counterclaim of $ 1,256.25, allowed by the court, was eminently proper, as shown by defendant's exhibit X, but not set out and printed in plaintiff's abstract. (3) The court allowed the defendant a credit for one-half of $ 706 wrongfully obtained by Bovard and Loomis, towit, $ 353.
This is an action at law for money had and received by defendant of plaintiff in the sum of $ 7,500. The answer set up a counterclaim for money paid out to plaintiff's use and at its request, $ 706.63, and the further claim of salary due defendant as treasurer and manager of the plaintiff corporation in the sum of $ 3,833.33. The case involved a lengthy investigation and accounting and was by the court referred to a referee. The referee reported a finding in favor of plaintiff for $ 3,160.34. Exceptions were taken to the report and the trial court refused to adopt it, but made a finding that a balance was due the defendant of $ 209.88 and judgment was entered in his favor for that sum. Plaintiff appealed.
It appears that one W. H. Loomis and defendant entered into a contract to form the plaintiff corporation for the purpose of mining coal. It was therein agreed that Loomis was to be president and secretary and defendant was to be treasurer and manager and each was to have an annual salary of $ 2,000. By the terms of this contract defendant was to furnish the money to open and equip the mine for which he was to have reimbursement out of the first earnings of the corporation. Afterwards, on the eighteenth of February, 1891, the plaintiff corporation was formed and incorporated, Loomis and defendant being the principal stockholders, and at a meeting of the directors the contract between defendant and Loomis (including the provisions as to said salaries), was adopted and incorporated into the by-laws of the corporation.
Though the record in this case is voluminous and many questions have been argued there seems to be but one point made for reversal in the brief and that relates to the right of defendant to a salary in any amount. As to that we entertain no doubt of the correctness of the view of the trial court. Defendant was treasurer and manager of the corporation and by the terms of the written contract between him and Loomis he was to receive a salary. This was confirmed and adopted by resolution of the directors after the formation of the corporation. While it is true that the services of a director of a corporation, in the line of his duty as such, will be presumed to be gratuitous, yet when such director is likewise a general officer with the duty of the management of the affairs of the corporation and has special provision made for salary there ought not to be any doubt of his right to receive it. Taussig v. Railway, 166 Mo. 28; Funsten v. Funsten, 67 Mo.App. 559.
But plaintiff's brief attacks the right of the defendant as treasurer to "take the moneys in his hands, which he held as servant and custodian of the company and apply them on his own claim for salary." The cases of Emporium Co. v. Emrie, 54 Ill. 345, and Gas Co. v. Reis, 54 Ohio St. 549, 44 N.E. 271, are cited in support of the statement. Neither of those cases are in point. They decide that an officer of a private corporation can not without the authority of the corporation take title to any of the corporation's property in payment of what it may owe him. We have here a totally different case. The...
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