Seelig v. Missouri, Kansas & Texas Railway Co.

• Decision Date: 09 April 1921
• Citation: 230 S.W. 94,287 Mo. 343
• Parties: WILLIAM L. SEELIG, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY
• Court: Missouri Supreme Court

230 S.W. 94

287 Mo. 343

WILLIAM L. SEELIG, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY

Supreme Court of Missouri, First Division

April 9, 1921

Appeal from St. Louis City Circuit Court. -- Hon. William T. Jones Judge.

Affirmed.

Joseph H. Grand and Fred H. Wulfing for appellant.

J. W Jamison for respondent.

OPINION

ELDER, J.

This is an action for the recovery of the value of services rendered by plaintiff (appellant herein), as auditor of the Missouri Kansas & Oklahoma Railroad Company.

The petition alleges that on June 14, 1904, plaintiff was employed as auditor of the said company, entered upon his duties as such, and performed all of those duties up to June, 1912; that said railroad company agreed to pay plaintiff for the reasonable value of the services rendered by him as such auditor, and that the same were reasonably worth, in all, the sum of $ 7500; that on the day of , 19 --, defendant Missouri, Kansas & Texas Railway Company took possession of and now holds all of the assets of said Missouri, Kansas & Oklahoma Railroad Company, and that "said Missouri, Kansas & Texas Railway Company, at or about said date expressly assumed in writing, and agreed to pay all of the debts of said Missouri, Kansas & Oklahoma Railroad Company, including the debt due to plaintiff from said Missouri, Kansas & Oklahoma Railroad Company, as aforesaid." Judgment is prayed for $ 7500, with interest thereon at the rate of six per cent per annum from the day of June, 1912. The suit originally was brought against the Missouri Kansas & Oklahoma Railroad Company and the defendant Missouri, Kansas & Texas Railway Company, but was later dismissed as to the former company.

The answer was a general denial.

Judgment was rendered for plaintiff for nominal damages of one cent. From this judgment, after an unsuccessful motion for a new trial, plaintiff took an appeal to the St. Louis Court of Appeals. For want of jurisdiction, owing to the amount involved, the St. Louis Court of Appeals ordered the case transferred to this court and it now comes on for review.

The following statements of fact, set forth in appellant's statement and brief, are admitted by respondent:

"The undisputed testimony shows that plaintiff on and prior to the 14th day of June, 1904, was and had been in the employ of the defendant, M., K. & T. Railway Company, as general auditor, and that on that day was appointed auditor of the M., K. & O. Railroad Company, said appointment being made by a Mr. Hedge, vice-president of that corporation.

"It also stands undisputed that the M., K. & O. Railroad Company was a construction company whose officers and directors were also officers and directors of the defendant, M., K. & T. Railway Company; that on the 30th day of June, 1904, a preliminary deed was made, and subsequently on November 3, 1904, a final deed was made by the M., K. & O. Railroad Company, said deed conveying all of its property and assets and all of its rights, privileges and franchises, excepting the right and franchise to be a corporation, to the defendant company for the consideration of $ 1 and the payment by the defendant of all 'debts, demands, claims and liens' of the M., K. & O. Company, which the defendant assumed and agreed to pay, satisfy and discharge."

Plaintiff did not personally appear or testify at the trial of the case, but his deposition was read in evidence. His testimony was that he entered the service of the defendant Missouri, Kansas & Texas Railway Company in 1892, and remained with that company, serving in several capacities, until October, 1912; that during about the last eight years he was auditor of the company, his salary being $ 7500 per annum; that immediately upon his appointment as auditor of the Missouri, Kansas & Oklahoma Railroad Company, on June 14, 1904, he "took charge of all of the books of the corporation, entered negotiations with contractors, inventoried the property, made collections of accounts, and settlements, auditing also all of the files of record, for the reason that the business of the company was involved;" that the nature of services rendered by him was "the work of an expert, going over the work for a period of two years, and to conclude the construction accounting and to liquidate the construction company;" that "the services were concluded in 1912, at which time I was advised that no further effort should be made to collect the bonus notes, as they were not considered worthy of further attention, under the conditions which had been indicated by the efforts to collect each of the notes;" that the service was continuous, "requiring much additional work at nighttime and outside of regular duties which I performed for the Missouri, Kansas & Texas Railway Company;" that during all the time the books and accounts were "kept in the office of the Missouri, Kansas & Texas Railway Company," but were kept separately; that some of the records were involved and required a great deal of time to decipher as they "were kept without regard to an experienced system of accounting;" that he had frequent conferences with the officers of the defendant company in reference to the accounts. Upon being asked to state "the fair and reasonable value of the services that you performed as auditor of the Missouri, Kansas & Oklahoma Railroad Company," plaintiff replied, "The most conservative estimate that I have is $ 7500."

On cross-examination plaintiff testified:

"Q. You know, do you not, that after the completion of these conveyances, all of the property of the Missouri Kansas & Oklahoma Railroad Co. was turned over to the Missouri, Kansas & Texas Railroad Company? A. Well, it conveyed its property, yes.

"Q. And all property, of every kind, and franchises, of the Missouri, Kansas & Oklahoma, was conveyed to the Missouri, Kansas & Texas Company? A. There was the conveyance, yes. . . .

"Q. And you left the service of the Missouri, Kansas & Texas Railroad Company in June, 1912? A. Yes, actually it was October 1st, 1912.

"Q. Who was the comptroller of the company at that time? A. Mr. Geo. T. Cutts.

"Q. How long had he been there? A. About a year.

"Q. Did you ever present him with a claim or an account for your services? A. He was not interested in that.

"Q. Ask any other officer or agent of the company prior to the time of the institution of this suit? A. Yes sir, I filed a claim for services, by correspondence.

"Q. With whom did you correspond? A. General Solicitor, Mr. J. M. Bryson.

"Q. When? A. In 1912.

"Q. Did you write to Mr. Bryson? A. Yes, about the claim.

"Q. What reply did you get? A. I don't remember now.

"Q. Did you receive any letter from Mr. Bryson? A. I might have received an acknowledgment.

"Q. Did you correspond with anybody else in connection with the railroad at any time about this claim, make any claim to anybody else prior to your correspondence with Mr. Bryson? A. I don't remember.

"Q. When was it you took up this correspondence with Mr. Bryson, after you severed your connection with the company? A. Yes, sir." During the course of the trial the court sustained objections by counsel for defendant to the following testimony contained in the deposition of plaintiff:

"Q. Will you give, in order, the services, fixing the amount of work that you did in connection with the audit of the accounts of the company; will you give a general estimate of that work? A. The Missouri, Kansas and Oklahoma Railroad Company, which is the combination of the Texas and Oklahoma Railroad, being a line from Oklahoma City to Colgate, of 117 miles and a fraction, and the Missouri, Kansas and Oklahoma Railroad, was bonded for $ 5,468,000, and the Texas and Oklahoma for $ 2,347,000, and a first mortgage extension of $ 337,000, and a total mortgage of $ 8,152,000 -- and capital stock of $ 7,200,000, total capitalization of $ 15,352,000. The bonds were issued in units covering ten miles of railroad, and were guaranteed by the Missouri, Kansas and Texas Railway Company.

"Mr. Jamison: Objected to as stating a conclusion of witness.

"Q. Go ahead. A. The extension mortgage bond covering the lease of the line, instead of construction, from Atocka, to Colgate, a total of 13.6 miles. These bonds were exchanged for the first and refunding mortgage bonds of the Missouri Kansas and Texas Railway Company, in the amount of $ 421,000, and the proceeds retained by the officers and directors of the Missouri, Kansas and Oklahoma Railroad Company, for services. The capital stock of $ 7,200,000 was exchanged for common stock of the Missouri, Kansas and Texas Railway Company, and $ 2,200,000 retained by the officers and directors for services; $ 5,000,000 was sold to the Southwestern Development Company at 15. The Southwestern Development Company was the successor to the Southwestern Coal & Improvement Company, which had a capitalization of $ 2,800,000, all owned by the Missouri, Kansas & Texas Railway Company, and carried on its books at a value of $ 280,000. No dividends had been received until 1903, when a four per cent dividend of $ 11,200 was received by the Missouri, Kansas & Texas Railway Company from its mining operations. In 1903 the Southwestern Coal & Mining Company was reorganized and known as the Southwestern Development Company, and capitalized at $ 1,000,000, 53.37% of the stock being taken by the officers and directors of the Missouri, Kansas & Texas Railway Company, as compensation, the Missouri, Kansas & Texas Railway Company receiving 46.67% of the million dollar capitalization. In the early part of 1903 the construction of the Missouri, Kansas & Oklahoma Railroad, and the Texas & Oklahoma Railroad was contemplated, and the Southwestern Development Company borrowed $ 200,000 from the Missouri, Kansas & Texas...