Fisse v. Blanke

• Decision Date: 19 November 1907
• Parties: FISSE v. BLANKE et al.
• Court: Missouri Court of Appeals

105 S.W. 689

127 Mo. A. 422

FISSE v. BLANKE et al.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

1. ACCOUNT STATED—NATURE AND SUBJECT-MATTER.

Where a bill for a specified amount, presented at a director's meeting of an insolvent corporation, and directed to the corporation and the plaintiffs in an action pending against the corporation for dissolution and a receiver for legal services rendered up to the presentation of the bill, including the receivership proceedings, and for all services necessary to settle the affairs of the corporation, showed upon its face and in connection with the testimony of the person presenting it that it was a conglomeration of different items of service rendered, and not a statement of indebtedness growing out of transactions between the person presenting it and all the parties to whom it was directed, it was not an account stated against the stockholders or directors of the corporation individually, but merely a written demand, preferred in anticipation of payment from some source not specifically designated.

2. SAME—PREVIOUS INDEBTEDNESS.

An account stated is not created by the mere written demand by one person on another, who acknowledges his liability and agrees to pay the demand, which may have grown out of dealings with a third party, for which the party against which the demand is preferred may believe himself liable, but can be created only where the demand is based upon antecedent transactions between the parties, out of which the relation of debtor and creditor has arisen.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action upon an account stated by William E. Fisse against Cyrus G. Blanke and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Kortjohn & Kortjohn, for appellant. A. Howe, for respondents.

GOODE, J.

In 1900 the Trinity Rice Land & Canal Company was incorporated. The defendants were promoters of it prior to the incorporation and, as we understand, officers and directors after it was organized. The plaintiff, William E. Fisse, was attorney of the corporation from its inception, took part in organizing it, and attended to most of its legal matters during its existence. The company appears to have been a Texas corporation—at least its interests were in that state, though its promoters are citizens of St. Louis. The record does not disclose the exact nature of its business, but indicates that, whatever the business was, the company was not prosperous, and fell into debt. Some of its officers, and particularly the defendant C. F. Blanke, were indorsers on its paper. The evidence tends also to prove that the capital stock was not fully paid, and that there was a liability on the part of the stockholders to contribute to the payment of its debts. While its affairs were in this posture, the officers and directors instituted a suit in Texas for a receivership and for a winding up of the affairs of the company. This suit was begun in order to anticipate a similar proceeding by the creditors of the company; the idea being that, if a winding-up bill was filed by the directors, receivers would probably be appointed who were less hostile to the interests of the directors and shareholders of the company than receivers would be who might be appointed in a suit by creditors. Fisse instituted the suit for a receivership against the corporation; the plaintiffs in the suit being the individual defendants in the present one and some other shareholders and officers of the company. Fisse did other legal work for the company itself; some for its officers (the individual defendants), and some in particular for the president, C. F. Blanke. These services were in the main connected with the winding up of the company and the disposition of its assets so as to relieve the shareholders of any liability on the stock, and to protect Blanke and some other officers as indorsers on its paper. Just how far the receivership proceedings advanced before Fisse ceased to look after them is not shown; but during their progress a disagreement arose between him and C. F. Blanke, on account of the latter consulting another attorney, and thereafter plaintiff did little or nothing in the receivership suit. His testimony indicates, however, that he was willing to render further services. There was a Texas attorney by the name of Glasscock who was likewise employed to assist in the receivership suit; that is, Glasscock was to co-operate with Fisse. The present action is against certain officers and directors of the corporation, and is based on the following account stated: "St. Louis, July 20, 1904. Trinity Rice Land & Irrigation Company and the plaintiffs in the action entitled H. O. Acom et al. v. Trinity Rice Land & Irrigation Company, brought to the March term, 1902, of the district court of Chambers county, Tex., and now pending in the district court of Liberty county, Tex., to W. E. Fisse, Dr., to services rendered to date in matters of Trinity Rice Land & Irrigation Company, including receivership proceeding still pending, and for all services necessary to be rendered in order completely to settle affairs of company, according to plan now in process of execution and hitherto authorized by stockholders, $2,500."

The petition declares that defendants on or about July 20, 1904, promised and agreed to pay plaintiff's demand, and thereafter, on July 21, 1904, did pay him $500, leaving a balance due of $2,000, for which judgment is prayed. Besides a general denial, the answer specifically denies that there ever was an account stated between plaintiff and the individual defendants, or either of them; or that they agreed to pay such account; or that there was a consideration for such a stated account against them or a promise by them to pay it; that defendants, as officers and directors of the Trinity Rice Land & Canal Company, employed plaintiff in behalf of said corporation to render legal services to it; and that the services for which he seeks to recover were rendered to the corporation and not to the individual defendants. Said defendants deny that on or about July 20, 1904, they promised to pay plaintiff's demand, but state that on said date plaintiff agreed with the corporation to render certain specified services, the greater portion of which were to be performed in the future, and thereupon the company paid him $500 on his account against it; that thereafter plaintiff refused to perform the services he agreed to perform, and for that reason the corporation owes plaintiff nothing. At the instance of the plaintiff, the trial court found the facts as follows: "The Trinity Rice Land & Irrigation Company was organized as a corporation about the year 1900. The plaintiff, together with his then partner, Mr. Kortjohn, under the style of Fisse & Kortjohn, acted as the attorneys for the corporation; they having prepared the original articles of incorporation. And the plaintiff continued to act as counsel or attorney for the corporation from that time down to July, 1904, and during the intervening years performed the services for the corporation that are involved in this suit. That the plaintiff was employed by the corporation and not by the directors as individuals. That plaintiff never rendered any bill of any kind for services to any individuals, either stockholders or directors of the corporation, and never rendered any bill to the corporation itself, except the bill introduced in evidence in this case, dated July 20, 1904. The question of the personal liability of the defendants in this suit, or, at least, some of the defendants, was never discussed between the plaintiff and such defendants, except at a meeting of the board of directors of the corporation held in July, 1904, at which meeting plaintiff presented his bill for services, and then for the first time stated to some of the defendants who were present at the meeting that they were personally liable to him for the value of his services, and that certain of the defendants then yielded to the argument or persuasion of the plaintiff, and admitted their liability. As stated above, I find that there was no intention on the part of the plaintiff to hold the directors of the corporation personally liable, and there was no contract between him and the individuals composing the directory of the corporation at the time he was engaged to render services. I further find that, although plaintiff was ready and willing to perform the services called for in the account rendered shown in evidence, he did not perform all the services because the corporation dispensed with his services and employed another attorney some time after July 20, 1904. As...