Mt. Nebo Anthracite Coal Company v. Martin

• Decision Date: 15 June 1908
• Parties: MT. NEBO ANTHRACITE COAL COMPANY v. MARTIN
• Court: Arkansas Supreme Court

111 S.W. 1002

86 Ark. 608

MT. NEBO ANTHRACITE COAL COMPANY v. MARTIN

Supreme Court of Arkansas

June 15, 1908

Appeal from Pope Chancery Court; Jeremiah G. Wallace, Chancellor affirmed.

Decree affirmed.

J. A McCracken and Dan B. Granger, for appellants.

1. The motion to strike out the amendment to the complaint should have been sustained. Except by consent of parties, pleadings cannot be amended by introduction of new parties or causes of action. 98 N.C. 509; 30 W.Va. 774; 20 P. 45; 16 S.W. 124; 13 S.W. 922; 58 N.W. 693; 17 S.E. 1036. Amendment of complaint to conform to facts proved is properly denied when it will permit a recovery upon an entirely different cause of action from that originally set forth in the complaint. 132 N.Y. 22; 13 S.W. 769; 10 So. 328.

2. There is a misjoinder, both of plaintiffs and causes of action. The account introduced by the amendment was for services rendered by the plaintiffs separately. The wife had no right of recovery for the separate services of the husband, and he was not a necessary party, and had no right to the recovery for the wife's separate services. Kirby's Dig. § 5214. See also 43 F. 358; 38 W.Va 409.

3. As to partnerships, it is settled that partners are not entitled to charge the partnership for services rendered in the prosecution of its business, unless by agreement. Lindl. on Partnership, Am. Ed. * 380, 643-44, and note 4; George on Partnership, 165 et seq.; 6 L. R. A. 72 and note. See also 128 Ill. 209; 129 Pa. 635; 67 Miss. 462. And as to corporations it is also settled that directors are not entitled to salary unless provided for by charter or by-law and that a director cannot make a valid contract with himself so as to bind the corporation for services outside of his duty as a director. 3 L. R. A., 378 note. Clark on Corp. 508 et seq., 531 et seq. See also 9 L. R. A. 117; 17 Am. & Eng. Enc. of L., 1st Ed., 119.

J. T. Bullock and R. B. Wilson, for appellees.

1. The amendment was both permissible and proper. It did not change the character of the action, affected no other parties but affected all parties to the suit alike. Kirby's Dig. § 6145; Id. § 6848; 80 Ark. 228; 42 Ark. 57; 64 Ark. 253; 67 Ark. 142; 74 Ark. 101; 62 Ark. 262.

The wife may claim and sue for her earnings as her sole and separate property. Kirby's Dig. § 5214. But when she does not elect so to do, but allows them to be used by the husband as his funds or to be used as a part of a common fund, then the common law rule applies, and the husband is entitled to sue for and recover them. 74 N.Y. 356. Where husband and wife bring an action jointly which should be brought by the husband alone, the proceedings may be amended by striking out the wife's name. 8 Ind. 341. An improper joinder of wife with husband is no ground of reversal. 84 Mo. 318; 128 Mo. 670; 51 Mo.App. 341; 120 Pa.St. 485; 21 Cyc. 1553.

OPINION

HILL, C. J.

Edward J. Martin discovered that a coal mine near Russellville could be purchased at a profit, and interested some of his relations, Frank Hoblit, Charles E., Samuel H. and Clinton D Martin, the latter three being brothers, in the venture. The mine was purchased, and E. J. Martin placed in charge of it as manager; and part of the time Clinton Martin assisted him. Mrs. Minnie C. Martin served as clerk in the company's store.

This partnership was merged into a corporation, under the name of the Mt. Nebo Anthracite Coal Company. The property of the coal company was subsequently sold to William Hay and his associates, who were to form a corporation under the laws of Michigan to carry on the mining business purchased from the Mt. Nebo Anthracite Coal Company. The purchase price was partly in cash and partly in stock in the new corporation which was styled the Russellville Anthracite Coal Mining Company, and was to be apportioned among the stockholders of the former corporation in proportion to their holdings. The sale was made, and the new corporation formed, and a disagreement arose between the parties as to the settlement of their respective interests, and E. J. Martin and Minnie C. Martin, his wife, brought suit in the Pope Chancery Court against the Mt. Nebo Anthracite Coal Company, Frank Hoblit, Samuel H. Martin, Charles E. Martin, Clinton D. Martin, the Russellville Anthracite Coal Mining Company, and William Hay, wherein the history of the transactions was set forth and their respective claims against the Mt. Nebo Anthracite Coal Company were sought to be enforced. The prayer was for the dissolution of the Mt. Nebo Anthracite Coal Company and a settlement of its affairs and the payment of the sums owing to plaintiffs and distributing the remaining assets among the stockholders; and that the Russellville Anthracite Coal Mining Company and William Hay be restrained and enjoined from delivering the stock to Clinton B. Martin which was to be part payment for said property of the Mt. Nebo Anthracite Coal Company, and that it be held by the court so as to be subjected to the satisfaction of the judgment sought in this case. Issue was made upon all the allegations of the complaint, and there were amendments and a shifting of issues in the case in the progress of the litigation, which finally resulted in a decree finding that E. J. Martin was entitled to salary from the Mt. Nebo Anthracite Coal Company from the first of October, 1899, to the 15th of December, 1904, at the rate of $ 100 per month; and that said Minnie C. Martin was entitled to salary for forty months at the rate of $ 40 per month; and that said Company was indebted to the said plaintiffs in the sum of $ 4,778 on account of said salaries, which was shown in detail in the master's report, which was approved by the court. Judgment was rendered in favor of E. J. Martin for himself and his wife for said sum, and orders made for the enforcement of it against the assets of said Mt. Nebo Anthracite Coal Company, including the stock in the Russellville...