Grath v. Mound City Roofing Rile Co.
| Decision Date | 11 December 1906 |
| Citation | 98 S.W. 812,121 Mo.App. 245 |
| Parties | GRATH, Respondent, v. MOUND CITY ROOFING TILE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Robert M. Foster Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
David Goldsmith for appellant.
The exclusion of the evidence as to what transpired at the meetings of the board of directors of the defendant was erroneous. Goodwin v. U. S. Annuity, etc., Co., 24 Conn. 601; Novelty Mfg. Co. v. MacAlister, 40 Mich 84; Gilson, etc., Co. v. Gilson, 51 Cal. 341; Tibbats v. Mt. Olympus, etc., Co., 10 Wash. 329; Cameron v. Bank, 34 S.W. 179; Soudek v Tennessee, etc., Co., 1 Baxt. (60 Tenn.) 290; Railroad v. Tiernan, 37 Kan. 606. And the ruling of this court in Rawhide Company v. Hill, 72 Mo.App. 142, and of the Supreme Court of Indiana in Price v. Railroad, 13 Ind. 60, and in Hamilton v. Railroad, 13 Ind. 347, also support our contention on this subject.
Hickman P. Rodgers for respondent.
(1) The resolution of the board of directors providing for plaintiff's salary, having been acted upon by both parties--plaintiff doing the work and defendant accepting the benefits of it--is conclusive. Greenleaf on Evidence (16 Ed.), sec. 207, p. 340; Layson v. Cooper, 174 Mo. 220. (2) The exclusion of cumulative testimony is not reversible error. Crapson v. Wallace Bros., 81 Mo.App. 680. (3) Where it clearly appears that errors complained of could not have misled or influenced the jury, or changed the result, the judgment will not be reversed. Doyle v. Trust Co., 140 Mo. 1; Barkley v. Cemetery Assn., 153 Mo. 300.
--Plaintiff seeks to recover salary alleged to be due him from the defendant corporation for the months from July 1, 1903, to July 1, 1904. The compensation asked is for services rendered in keeping books, attending to correspondence and managing the business of the company. That plaintiff devoted his time steadily to the company's affairs was established by testimony which showed he was in attendance at the company's office looking after its affairs every day during business hours throughout the period covered by the suit. Plaintiff was one of the promoters of the corporation and had agreed, in consideration of the issuance to him of five thousand dollars of the capital stock as fully paid, to give his services gratis to the company until it could afford to pay for them. He held in all $ 12,500 worth of stock out of $ 62,600 issued shares, and was interested in the prosperity of the enterprise. The company was formed in December, 1902, and plaintiff attended to its affairs without compensation until July, 1903. The minutes of the meeting of the directors show that on the 20th of that month the following resolution was adopted: "Mr. Hunkins made a motion that the secretary's pay and salary is to begin on July 1, 1903, this motion was carried." Grath was the person designated as secretary. He testified that no amount of salary was fixed; but that it was agreed at the meeting when the resolution was adopted, the salary should be fixed by an agreement between him and the president of the company, who was absent from the meeting. Plaintiff swore that on the following September, 1903, he and Ruckert, the president, agreed his salary should be one hundred and twenty-five dollars a month, and run from July, 1903, in accordance with the resolution. Thereafter plaintiff entered his salary each month as a debit against the company and by June, 1904, the charges in his favor amounted to $ 1,375. No money was paid him meanwhile. On June 16, 1904, the following resolution was adopted by the board as the minutes show: The two resolutions we have quoted were both written on the minutebook by plaintiff, but the first one was attested by the signature of the vice-president, as well as plaintiff's own signature; the second being attested only by the signature of plaintiff as secretary. Oral testimony was received from some of the directors to show Grath agreed on July 20, 1903, when the resolution allowing him a salary was passed, to take credit for the salary on the books of the company until it "was on a paying basis." Grath swore no such agreement was made. This oral testimony was first objected to, plaintiff's counsel insisting the minutes of the board meeting were conclusive; but the objection was withdrawn and two of the directors permitted to testify. When another director was interrogated on the same subject, counsel renewed the objection and the court made this ruling; "The minutes themselves are in evidence and under the pleadings as they stand, I don't think they can be contradicted, as I said this morning, added to or amended." Other testimony as to the agreement with plaintiff about his salary was excluded on objection of his counsel. In testifying in regard to the resolution of June 16, 1904, plaintiff said: "The agreement was that I was to get my money; that the company was to pay it as fast as they could pay it to me, whenever they could spare any money they were to pay it to me." It should be remembered this testimony was given regarding what the agreement intended by the resolution of 1904 was; the date when plaintiff left the service of the company. It ought to be remembered, too, that some oral testimony was excluded, both as to this agreement and also as to the full terms of the original agreement referred to in the resolution of July 20, 1903. If, in fact, the original agreement regarding plaintiff's salary contained, as he swore, no other terms than are shown by the minutes of July 20th, which stated the salary was to begin on July 1st of said year, a subsequent agreement in June, 1904, providing for payment of salary only when payment could be made from the operating expenses of the...
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