Copp v. St. Louis Cnty.

• Decision Date: 31 March 1864
• Parties: SAMUEL COPP, JR., Respondent, v. ST. LOUIS COUNTY, Appellant.
• Court: Missouri Supreme Court

34 Mo. 383

SAMUEL COPP, JR., Respondent,

v.ST. LOUIS COUNTY, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Circuit Court.

This suit was brought to recover of appellant pay for services alleged to have been rendered by respondent, in the matter of transferring stock of appellant in the Pacific Railroad Company to holders of tax certificates.

The appellant, in the answer, denied any agreement to compensate respondent, or any legal liability to compensate him for the services alleged to have been rendered. At the trial, the respondent gave in evidence an order of the County Court of St. Louis county, appointing him an officer of the court to transfer the stock in conformity with the by-laws of said Pacific Railroad Company.

Respondent also gave in evidence testimony tending to show the value of his services, and rested his case.

The appellant, to maintain the issue on its part, proved that three or four months after respondent's appointment, he presented to the County Court an account for one quarter's services; that the said County Court refused to allow or pay the same. Appellant then offered to prove that, at the time respondent presented said account for allowance, he was informed and notified by said court that defendant would not pay anything for the services for which he claimed compensation; that, rather than have the county put to any expense in making such transfers of stock, the presiding justice of the County Court would himself go to the office of the railroad company, and make the transfers as occasion might require.

To the giving of testimony respondent's counsel objected. The court sustained said objection and appellant's counsel excepted.

Appellant's counsel then offered in evidence a duly certified copy of a resolution adopted by the board of directors of the said railroad company, at a regular monthly meeting of said board, on the 18th day of March, 1856, at which meeting respondent was present, and as secretary recorded the proceedings. The resolution is as follows:

“ Resolved, That the secretary of this company shall make all transfers of stock of the county in this company without charge.”

To the giving of which resolution in evidence respondent's counsel objected, on the ground that it was not competent; the court sustained the objection and appellant's counsel excepted. Appellant then proved that the salary of respondent, as secretary of the Pacific Railroad during the time when the alleged services were rendered, was $3,600 per annum. Appellant then offered in evidence the following by-law of the Pacific Railroad Company, which respondent's attorney admitted to be a by-law of said company, and that the secretary of the company was one of the officers to which it relates, viz:

“The salary of all the above officers shall be fixed by vote of the board of directors, and no extra allowance for any service performed by such officers shall be made without the concurrence of the board.”

To the admissibility of which in evidence plaintiff's attorney objected. The court sustained the objection, and defendant excepted.

S. H. Gardner, for appellant.

I. The court below erred in excluding oral evidence offered by defendant, for the purpose of showing that the County Court made no agreement whatever with plaintiff to compensate him for the services alleged to have been rendered by him, and in excluding evidence to show why plaintiff was appointed agent, and under what circumstances the appointment was made. As a general rule, a defendant may go into evidence to show that a promise to pay would not necessarily be implied, but must be expressly proven. (Partlow v. Cooke, 2 Coke, 451; Cooper v. Whitehouse, 6 C. & P. 545.)

To a proper understanding of this cause, and the ruling of the court by which the above mentioned evidence was excluded from the jury, it is necessary that the nature of the plaintiff's agency, and the statute under which he was appointed, should be particularly considered. By statute (R. C. 1855, p. 404, Tit. Corporations--Railroad), it was made lawful for the County Court of any county in this State to subscribe to the capital stock of any railroad company duly organized under the statutes of this State. (R. C. 1855, p. 427, § 30.)

The 31st section of the same act provides, among other things, for the levying of a tax to pay such subscription, and the 32d section provides that for all such taxes thus levied the County Court shall cause to be issued and delivered to persons paying such special tax, a certificate for the sum paid, which shall be transferable by the holders of the same and convertible into stock of such railroad.

II. It was error in the Circuit Court to exclude from the jury as incompetent evidence the resolution passed by the board of directors of the Pacific Railroad Company, by which the respondent was required to make the transfer in question without charge. The objection, as well as the ruling of the court, went to the competency of the resolution itself. We cannot see on what possible legal grounds this resolution can be considered inadmissible in evidence. It was clearly within the power of the board to pass it. The plaintiff, as secretary of the company, was the servant of the board and under its control. (Elmes v. Ogle, 2 Eng. Law & Eq. 379.) It was admissible for another reason; plaintiff acquiesced in it. (Greenl. Ev. § 379.)

This resolution was admissible in evidence upon still another ground. It was only with the consent of the company that he would be thus employed. He was in the service of the company as secretary to the board, and in receipt of a liberal salary of $3,600, which amply compensated him for bestowing all his time and attention to its concerns. This is a well recognized principle of law. And if, in making these transfers, plaintiff was not in fact in the service of the company, it was an employment against his duty, and which gave him no right to compensation therefor. (Thompson v. Havelock, 1 Campbell, 527; 1 Ryan & Moody, 45; 2 Saun. on Ev. & P. 1295; Gardner v. McCutcheon, 4 Beav. 534.)

III. It was error in the Circuit Court to exclude from the jury the evidence of the by-law of the Pacific Railroad Company. The services for which the plaintiff claims to be compensated were rendered under the resolution of the board above mentioned, and were in point of fact rendered the company, and may have been considered as extra services, and hence the by-law referred to was admissible in evidence. It was admissible for another reason: the order of the County Court appointing plaintiff, under which he claims compensation, and which was given in evidence by him, expressly refers to the by-laws of the company.

I...