Sidway v. Missouri Land & Live Stock Co.

• Decision Date: 14 March 1905
• Citation: 187 Mo. 649,86 S.W. 150
• Court: Missouri Supreme Court
• Parties: SIDWAY v. MISSOURI LAND & LIVE STOCK CO., Limited.

86 S.W. 150

187 Mo. 649

SIDWAY v.MISSOURI LAND & LIVE STOCK CO., Limited.

Supreme Court of Missouri, Division No. 2.

March 14, 1905.

CORPORATIONS—STOCKHOLDERS—SERVICES— FRAUD—QUANTUM MERUIT—PETITION—CAUSES OF ACTION—FORM OF ALLEGATION—EXHIBITS — ACCOUNT—LIMITATIONS—SUSPENSION— COUNTERCLAIM—APPEAL—REVERSAL—RETRIAL —JUDGMENT ON VERDICT.

1. Where, in an action for the reasonable value of plaintiff's services, the petition alleged that plaintiff was requested by defendant's board of directors to continue in defendant's employ and render services for it as occasion might require and when requested, each subsequent request, the rendition of services thereunder, and defendant's refusal to pay therefor, constituted a distinct cause of action, so that it was improper to include all in a single allegation of services rendered between certain years, and allege that the items would appear by an itemized statement filed with the petition.

2. Where plaintiff, who was the largest stockholder of a corporation, performed services for it, and wrote a large number of letters in which he disclaimed any intention to charge therefor, he was not thereafter entitled to recover for such services, though they were beneficial to the corporation.

3. Where, in an action for services, the issue was whether there was a contract to pay for them or whether they were gratuitous, an instruction that if defendant contracted and agreed to pay plaintiff the reasonable value of his services, and they were rendered pursuant thereto, then any statement, written or verbal, that plaintiff had not charged defendant for such services, or did not want pay therefor, would not prevent him from recovering, was erroneous, as misleading and conflicting.

4. Where, in an action for services, plaintiff's claim was not the subject of a book account, but he testified that within three months prior to the trial he had gone through over 3,000 letters between defendant and himself, from which he had made up a statement of the charges sued on, running over a period of 20 years, plaintiff's claim was not a current account within Rev. St. 1899, § 4278, providing that a cause of action on a current account shall be deemed to have accrued from the date of the last item on the adverse side.

5. Where defendant, a foreign corporation, was licensed to do business in Missouri, and

there maintained an office and agent on whom service of process might be obtained at any time, under Rev. St. 1899, §§ 570, 1007, it was not a nonresident within section 4282, providing for the suspension of limitations as against a debtor who was a resident at the time the action accrued and thereafter departed from the state.

6.After defendant corporation had notified plaintiff, its largest stockholder, of its determination to sell all stock on a farm on a certain day, plaintiff made an arrangement with the board of directors to make a nominal sale of the cattle and to advance money to the purchaser, such arrangement being purposely kept from the records of the corporation in order to deceive the stockholders.Held, that plaintiff could not recover commissions from the corporation for furthering such transaction.

7.Where, in an action for services, defendant filed a counterclaim on which it recovered a judgment, but after reversal of plaintiff's judgment defendant again pleaded its counterclaim to recover unliquidated damages, it was thereby estopped to demand that the court render judgment in its favor on the verdict recovered on the counterclaim in the first action.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Action by L. B. Sidway against the Missouri Land & Live Stock Company, Limited.From a judgment in favor of plaintiff, defendant appeals.Reversed.

George Hubbert and O. L. Cravens, for appellant.John T. Sturgis and Adiel Sherwood, for respondent.

GANTT, J.

This cause is in this court on a second appeal.The first appeal is reported in 163 Mo. 347, 63 S. W. 705.After the cause was remanded to the Newton court, a change of venue was awarded to Polk county.The plaintiff filed a third amended petition, which was held bad on demurrer, and thereupon plaintiff filed a fourth amended petition.Defendant made a timely motion to strike out this fourth petition, because it failed to comply with the order of the Newton circuit court, and for the reason that it was confusing, indefinite, duplicitous, and not sufficiently itemized, and did not contain a statement of facts constituting a cause of action, which motion was overruled, and defendant duly excepted.Thereupon defendant filed its answer, containing, first, a general denial; second, that all the alleged services for which plaintiff claimed, so far as rendered in fact, were voluntary and gratuitous, without charge or intention to charge defendant therefor, plaintiff being at the time a corporate member and large shareholder in defendant company, and were so received and accepted by defendant's company; that plaintiff is estopped from asserting defendant's liability to him for such services by the terms of the articles of agreement and association and the laws of Great Britain, under which defendant was and is incorporated, which said articles require all such liabilities and undertakings as alleged to be contracted and incurred only by or under the resolution of its board of directors, duly minuted in writing on the part of the company, and that such employment was not so minuted by any resolution or agreement; that said claim for said services was barred by the statute of limitations of five years before this suit was commenced.The answer also contains a counterclaim upon a certain bond executed by one Dummit, with plaintiff as surety thereon, in the sum of $3,000.Plaintiff in his reply admitted the execution of the bond, but pleads full performance of all the conditions thereof.Before the last trial defendant moved the court to refer the case to a suitable referee, on the ground that a trial of the issues would necessitate the examination of a long account and extensive correspondence, which motion the court overruled, and defendant excepted.At the close of the evidence, defendant demurred to the evidence on both counts of the petition.The court sustained the demurrer on the second count, and plaintiff took a nonsuit.The court overruled the demurrer to the evidence on the first count, and the jury returned a verdict for plaintiff for $11,198, with interest at 6 per cent., and found against the defendant's counterclaim.When this cause was here on the former appeal, it was held that the defendant's motion to strike out plaintiff's second amended petition, because it did not set out the facts, agreements, contracts, and grounds constituting his cause of action, should have been sustained.It appears that the circuit court sustained a demurrer to the third amended petition, and thereupon the plaintiff filed the petition upon which he obtained the verdict appealed from.The general facts of this case are stated in the report of the first appeal, and to that reference is made.Sidway v. Mo. Land & Live Stock Co., 163 Mo. 342, 63 S. W. 705.Such additional facts as were developed on the last trial will be noted in the course of the opinion.

1.We are confronted at the threshold with the complaint that the fourth amended petition was challenged by a timely motion to strike it out because the plaintiff had failed to comply with the ruling of this court on the first appeal, and the positive command of the circuit court to make it specific and certain and conform to the requirements of a good pleading.The original petition was filed in the office of the circuit clerk of Newton countyMarch 3, 1896.The fourth amended petition was filed May 28, 1902.On the same day the motion to strike out was filed and overruled, and defendant excepted.The specific objection is that "the said fourth amended petition and counts thereof are vague, indefinite, uncertain, and they intermingle, confuse, and confound, under one inseparable statement, divers matters relating to distinct and several undertakings, various general employments, special engagements and services," etc.The petition by way of a general allegation, states that "defendant is indebted to him for services rendered and expenses incurred by him in and about the transaction of its business, and in advising and assisting in the management of its property and business, from the year 1884 to the year 1895, both inclusive, in the sum of $11,000, the items particulars whereof more fully appear from the itemized account and bill of particulars herewith filed, marked `Exhibit A,' and made a part hereof, together with the following statements.""That the services were rendered by plaintiff at the special instance of defendant, under the contract and agreement as hereinafter alleged and set forth, and under its direction, through its officers and agent and its president, secretary, directors, and managers, and with their knowledge and consent, and were valuable to defendant, and defendant received the benefit thereof, and agreed to pay therefor whatever the same were reasonably worth, and the prices charged are reasonable, and are fixed by a reasonable value of the same upon a quantum meruit."The contract upon which the various services are alleged to have been performed is stated as follows: "That the plaintiff being in Edinburgh, Scotland, in the winter of 1884-85, was requested by defendant's board of directors, then and there in session (such requests having been made, however, on several previous occasions), to continue in defendant's employ and render it assistance and perform services for it from time to time as occasion might require, or as requested and instructed by defendant, its officers, directors, or managers in America, or as in his judgment might be deemed necessary; to give his time and attention to its business, and to give it the benefit of his...