Caho v. Norfolk & S. Ry. Co

• Citation: 147 N.C. 20,60 S.E. 640
• Court: United States State Supreme Court of North Carolina
• Decision Date: 04 March 1908
• Parties: CAHO . v. NORFOLK & S. RY. CO. et al.

60 S.E. 640

147 N.C. 20

CAHO .

v.NORFOLK & S. RY. CO. et al.

Supreme Court of North Carolina.

March 4, 1908.

1. Pleadings — Joint Demurrer—Pleading Good in Part.

Where defendants join in a demurrer to the complaint, if the complaint states a causeof action against either of defendants, the demurrer must be overruled.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 463.]

2. Corporations—Compensation of Officers —Contract.

In the absence of an express contract made prior to the performance of the services, an officer of a corporation cannot maintain an action for compensation.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1334-1338.]

3. Same.

Where power is conferred by the charter on corporate directors to elect officers and fix their salaries, the salaries must be fixed at the time of election, and cannot be left open for future adjustment.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, § 1341.]

4. Same—Action of Stockholders.

A contract properly made by corporate stockholders for extra compensation of one of its officers is valid without approval of the board of directors.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, § 1341.]

Appeal from Superior Court, Pamlico County; Lyon, Judge.

Action by W. T. Caho against the Norfolk & Southern Railway Company and others. From a judgment for plaintiff on demurrer to the complaint, defendants appeal. Affirmed.

This cause was heard upon demurrer to the complaint. Plaintiff alleged: The incorporation of the several defendants. "That plaintiff, at request of defendant Pamlico, Oriental & Western Railroad Company, procured a charter for said company and organized said company, and rendered services and expended money in said organization for said company, for which the said Pamlico, Oriental & Western Railroad Company promised to pay plaintiff the sum of $551.25. That said Pamlico, Oriental & Western Railroad Company has paid plaintiff on said account the sum of $485, leaving a balance due and owing to plaintiff on said account the sum of $66.25, which said defendant promised and agreed to pay to the plaintiff. That said defendant Pamlico, Oriental & Western Railroad Company has not paid the sum of $06.25, although often demanded by the plaintiff. That he rendered service to defendant Pamlico, Oriental & Western Railroad Company as attorney and president, at request of said company, and expended money in advertising for said company to the amount of $8,855.25, which the said defendant Pamlico, Oriental & Western Railroad Company promised and agreed to pay to the plaintiff. That plaintiff has received on said account the sum of $165, leaving a balance due and unpaid and owing to plaintiff the sum of $8,690.25, which defendants promised and agreed to pay to the plaintiff. That the defendants have not paid the said account, although often demanded by the plaintiff That on the 27th day of February, 1906, the directors of the said Pamlico, Ori ental & Western Railroad Company met, at Newbern, N. C, pursuant to a regular call, adopted a resolution approving and allowing said claim, as set out in plaintiff's cause of action, and promised to pay the same, copy of which is hereunto annexed, marked 'Exhibit A, ' referred to and made a part of this complaint. That the defendant Virginia & Carolina Coast Railroad Company purchased all the rights, privileges, franchises, and assets of every nature of the said defendant Pamlico, Oriental & Western Railroad Company, and assumed all the liabilities of the said defendant Pamlico, Oriental & Western Railroad Company, including the claim of the plaintiff as above set forth. That on or about the—— day of December, 1906, the defendant Norfolk & Southern Railway Company, by merger with its codefendant, Pamlico, Oriental & Western Railroad Company, and Virginia & Carolina Coast Railroad Company, assumed all the liabilities of said Pamlico, Oriental & Western Railroad Company, and said Virginia & Carolina Coast Railroad Company, including the claims and demands of plaintiff, as above set forth, as plaintiff is informed and believes, as appears from the letter hereunto annexed, marked 'Exhibit B' and made a part of complaint."

For a second cause of action plaintiff complains and alleges: "That he rendered services to defendant Pamlico, Oriental & Western Railroad Company as attorney and president, at request of said company, from April 20, 1905, to May 8, 1906, for which services the said company is indebted to the plaintiff in the sum of $1,069.50, which the said defendant the Pamlico, Oriental & Western Railroad Company promised and agreed to pay to the plaintiff. That the defendants have not paid the said account, although often demanded by the plaintiff."

Attached to the complaint is a copy of the proceedings of the board of directors of the Pamlico, Oriental & Western Railroad Company: "February 27, 1906. Pursuant to the call of the president, the board, etc., met and was called to order by the president, W. T. Caho. * * * The following directors were present: W. T. Caho, D. H. Hooker, etc. The president called D. H. Hooker to the chair and retired. W. T. Caho presented his account to the board and on motion the account was filed with the secretary. * * * On motion of C. M. Babbitt, the following account of W. T. Caho, president of the P., O. & W. R. R. Co. was allowed, to wit: " The account consists of a number of items, such as services rendered in procuring charter of March 9, 1891, $500; credit by amount paid by charter members $235; by shares of stock to be issued at $10 a share $250; to advertising meeting to organize, $350; other items for advertising meeting for organization aggregating about $50. On September 30, 1891, a balance is struck showing amount due plaintiff $66.25.

It is stated that this amount is due "up to and including organization." On June 18, 1892, a charge is made for "salary and fees as president from June, 1891, to June, 1892, $500." A similar charge is made on June 18th of each year up to and including June 18, 1901. On June 18, 1902, 1903, and 1904, a charge of $900 annually for "salary and fees as president." On April 20, 1905, a charge is made of $1,000 for "salary and fees as president, including Incidental expenses to date from June 18, 1904." Two items are charged—June 18, 1903, and June 18, 1904...