Severson v. Bimetallic Extension Mining & Milling Co.

• Decision Date: 09 March 1896
• Citation: 44 P. 79,18 Mont. 13
• Parties: SEVERSON v. BIMETALLIC EXTENSION MINING & MILLING CO.
• Court: Montana Supreme Court

44 P. 79

18 Mont. 13

SEVERSON v. BIMETALLIC EXTENSION MINING & MILLING CO.

Supreme Court of Montana

March 9, 1896

Appeal from district court, Granite county; Theodore Brantley Judge.

Action by Steven Severson against the Bimetallic Extension Mining & Milling Company. From an order setting aside a nonsuit and granting a new trial, defendant appeals. Affirmed.

The plaintiff brought this action in quantum meruit for wages which he alleged to be due to him from the defendant for services performed by him as its superintendent, and also for the sum of $235, money expended by plaintiff for defendant. The case was tried to a jury. The court granted a motion for a nonsuit, and entered judgment in favor of the defendant. It appeared that the plaintiff was a director of the corporation defendant, and its vice president, and a large stockholder. The motion for a nonsuit was granted upon the ground that one occupying the relations towards the corporation above mentioned, could not recover compensation for his services as superintendent without an express contract of employment authorizing the performance of the particular service and the expenditures of moneys described. The plaintiff moved for a new trial. This motion was granted. From that order the defendant appeals.

H. R Whitehill, for appellant.

Rodgers & Rodgers, for respondent.

DE WITT, J. (after stating the facts).

No question of practice is raised by the briefs of either party in this case, and we will therefore take up and consider the appeal as it is presented by the record. All the testimony which was introduced is brought up in the transcript. This we have read, and from it we find that testimony was introduced which tended to prove that the plaintiff, while he was trustee and vice president and shareholder of the defendant performed services for the defendant as its superintendent and that the services were of some value. There was also evidence which tended to prove that these services were clearly outside of the ordinary duties of the plaintiff as director or stockholder; also that before the performance of the services the officers of the corporation well understood that plaintiff was to perform them, and that they were services outside of his duties as director and vice president, and were services that some one must perform. The evidence also tended to show that it was understood by the corporate officers that these were services which should be paid for by the corporation as those of a superintendent. These facts, in our opinion, bring the case within the decision of Felton v. Iron Mountain Co., 16 Mont 81, 40 P. 70. The court, therefore, erred in granting the nonsuit, as there was evidence tending to prove all the material allegations of the complaint, and the order of the court in setting aside the order for a nonsuit and the judgment and granting the new trial was correct.

As noted above, the question of practice in this respect is not noticed by counsel. It may be conceded that the doctrine is correct as announced in the many cases cited by the appellant that a director, trustee, or officer of a corporation cannot recover for services which he renders as such when there is no express contract to that effect. We are of opinion also that when such officer of a corporation seeks to recover for services rendered to the corporation without an express contract it should very clearly appear that such services were wholly apart from his office and duties as trustee director, or officer of the corporation. This principle is thoroughly recognized in the instructions given in Felton v. Iron Mountain Co., supra. But when the services rendered by such corporate officer are clearly distinguishable, and separated from his ordinary duties as an officer of the corporation, we are of opinion that he may recover upon quantum meruit, under the facts and circumstances as shown in Felton v. Iron Mountain Co., supra, and in the case at bar as well. Most of the cases which appellant cites are upon the general principle above set forth. They do not treat the case of a corporate officer rendering services, as under the circumstances of this case. In the case of Gill v. Cab Co., 48 Hun, 524, 1 N.Y.S. 202, upon which appellant chiefly relies, the court said: "An examination of this evidence, however, fails to show that there was any understanding or idea upon the part of the directors of this corporation, certainly as a body, that the plaintiff was to receive any compensation for his services except his salary as vice president. The evidence upon the part of the plaintiff himself tends to confirm this view, in that the only claim that he ever made to the corporation during the time that these services were rendered was that his salary as vice president should be raised." It is observed that these facts differ materially from those of the case before us. Our decision in Felton v. Iron Mountain Co., supra, is sustained in Association v. Meredith, 49 Md. 389. That case was thoroughly briefed by counsel, who called the attention of the court to the leading cases upon this subject. The court, by Grason, J., in delivering the opinion, said: "We have carefully examined the...