O'Brien v. John O'Brien Boiler Works Co.

• Decision Date: 30 December 1910
• Citation: 133 S.W. 347,154 Mo. App. 183
• Parties: O'BRIEN v. JOHN O'BRIEN BOILER WORKS CO.
• Court: Missouri Court of Appeals

133 S.W. 347

154 Mo. A. 183

O'BRIEN v. JOHN O'BRIEN BOILER WORKS CO.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

Rehearing Denied January 11, 1911.

1. CORPORATIONS (§ 308) — OFFICERS — COMPENSATION.

An officer and director of a corporation can recover compensation for services rendered within the duties of his office, only when compensation therefor has been provided either in the corporation's articles of association or by-laws or by resolution of its board of directors passed before the rendition of the services.

2. CORPORATIONS (§ 308) — OFFICERS — COMPENSATION.

An officer and director of a corporation may recover compensation for services outside the duties of his office, when the services were performed at the instance of the directors or of an officer having general power, on an implied promise to pay for the services when they were rendered under circumstances raising a fair presumption that the parties understood they were to be paid for.

3. CORPORATIONS (§ 285)—AGENTS—EMPLOYMENT.

The fact of employment by a corporation may be proved subject to the rules governing the proof of employment by an individual.

4. APPEAL AND ERROR (§ 1003)—VERDICT— CONCLUSIVENESS.

The Court of Appeals will not weigh the evidence, but that is for the jury and the trial judge.

5. APPEAL AND ERROR (§ 1004)—REASONABLE VALUE—VERDICT—REVIEW.

A verdict, in an action for the reasonable value of services rendered, supported by competent testimony, will not be disturbed as excessive.

6. EVIDENCE (§ 501) — OPINION — REASONABLE VALUE OF SERVICES.

On a question of the reasonable value of services rendered by one to a corporation, a witness, if acquainted with the nature of the services and the business of the corporation, may testify as to what would be the reasonable value of the services rendered to others in the same line of business as the corporation, but may not testify as to what he would have been willing to pay for the services of one as competent as the person rendering the services, or what the corporation subsequently paid an officer performing similar services, in the absence of evidence of the then duties of one performing such services.

7. APPEAL AND ERROR (§ 301)—QUESTIONS IN LOWER COURT—MOTION FOR NEW TRIAL— INSTRUCTIONS.

Instructions not challenged in the motion for new trial will not be reviewed on appeal.

Appeal from St. Louis Circuit Court; Eugene McQuillan, Judge.

Action by Mary O'Brien, as executrix of John J. O'Brien, deceased, against the John O'Brien Boiler Works Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John S. Leahy, for appellant. Crews & Cantwell, for respondent.

REYNOLDS, P. J.

This is an action to recover compensation for services alleged to have been rendered as general superintendent of the appellant company, by John J. O'Brien, deceased; the action being brought by his executrix. The petition contained two counts; one seeking recovery on a special contract for compensation at the rate of $416.66 2/3 a month, and the second on a quantum meruit, the value of the services being stated at the same amount, the services rendered, as it is alleged, between the 8th of January and 22d of April, 1908. The trial was before the court and a jury. At the close of plaintiff's evidence, and again at the close of all the evidence in the case, defendant interposed demurrers, which were overruled. The plaintiff appears to have abandoned the first count, and the court instructed on the second count alone. The jury found in favor of plaintiff on the second count for the full amount claimed, $1,458, and judgment followed. Defendant filed a motion for new trial, and, that being overruled and exceptions saved, has duly perfected its appeal to this court.

This case presented a very simple issue, and there should have been no room for error. It should have gone to the jury on the sole question of whether Mr. O'Brien was employed as general superintendent of defendant, under an implied contract of employment for hire, and, if so, what was the reasonable value of his services. He was an officer and director of the defendant and could only be entitled to compensation for any services rendered when compensation for his services was provided for, either in the company's articles of association, in its by-laws, or by resolution of its board of directors, passed before the services were rendered; or, being services outside of his duties as director or vice president, and he was both when the services are said to have been rendered, whether they were...