Taussig v. St. Louis & K. R. Co.

• Decision Date: 15 February 1905
• Citation: 186 Mo. 269,85 S.W. 378
• Court: Missouri Supreme Court
• Parties: TAUSSIG v. ST. LOUIS & K. R. CO.

85 S.W. 378

186 Mo. 269

TAUSSIG v. ST. LOUIS & K. R. CO.

Supreme Court of Missouri, Division No. 1.

February 15, 1905.

CORPORATIONS — ACTIONS AGAINST — JURISDICTION OF COURT — STATUTES — RETURN OF SERVICE OF SUMMONS — DIRECTOR OF CORPORATION — RECOVERY FOR LEGAL SERVICES — INSTRUCTIONS — LAW OF THE CASE.

1. Under Rev. St. §§ 994-997, relating to actions against corporations, providing that the summons shall be served on the president of the corporation sued, or, in his absence, by leaving a copy at the business office thereof, with the person in charge, and declaring that suits against corporations may be commenced in the county where they keep a business office, the circuit court of a county has jurisdiction of an action against a corporation where the return of service of summons shows that it was served by the delivery of a copy to the secretary at the company's usual business office in the county, he being in charge thereof, and the president not being found in the county.

2. The law authorizing a verdict by a jury, nine or more jurors concurring, is valid.

3. In an action by an attorney for services rendered, an exhibit filed with the petition, which sets forth the various kinds of legal services rendered, and the charge for each, sufficiently itemizes the services.

4. Where, on appeal from a judgment in an action against a corporation for legal services, the court remanded the cause, with directions to set aside the nonsuit and proceed with the trial, and decided that plaintiff's petition stated a cause of action, and that his evidence made a case for the jury, it was not error, on a second trial on the same pleadings and evidence, to refuse to direct a verdict for defendant.

5. The rulings of the Supreme Court on appeal become the law of the case for a subsequent trial.

6. An instruction, in an action against a corporation by a director and officer for legal services, that, though plaintiff was a director and officer, he was entitled to recover the value of legal services rendered if there was at no time a promise on his part not to charge therefor, and at the time he intended to charge therefor, and the services were rendered under such circumstances that the corporation expected that they were to be paid for, was not objectionable as authorizing a recovery for any services rendered as director or officer, and was not inconsistent with an instruction that if, at the time the services were rendered, it was understood that the services were not rendered by plaintiff as an attorney, but as a director or officer, there could be no recovery.

7. An instruction, in an action against a corporation by a director and officer for legal services, that, though plaintiff was an officer and director, he was entitled to recover, if, at the request of the directors or general manager, he performed legal services under an implied contract that they were to be paid for, required the jury to find that the services were performed either at the request of the directors or manager, and was not objectionable as submitting the question of the authority of the manager to employ an attorney.

8. Where a case was tried as if the reply constituted a denial of the defenses set forth in the answer, the court, on appeal, will not reverse the judgment for plaintiff on the ground that the reply was insufficient.

9. A motion by defendant for a peremptory instruction that under the pleadings and evidence plaintiff is not entitled to recover, without directing the court's attention to any defect in the reply, does not change the rule that, when a case has been tried as if issues on the defense set forth in the answer had been joined by the reply, the judgment will not be reversed for defects in the reply.

10. Where, in an action against a corporation for legal services, there was no evidence to show that plaintiff accepted a certificate of stock issued to him on account of services rendered by him, but it appeared that the certificate was never delivered to him, that no transfer of the stock to him was made, and that no credit on account of the certificate was claimed, plaintiff's claim for services could not be reduced on account of the issuance of the certificate.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Geo. W. Taussig against the St. Louis & Kirkwood Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jefferson Chandler, Dawson & Garvin, and Leonard Wilcox, for appellant. Jones, Jones & Hocker, for respondent.

BRACE, P. J.

This is an appeal from a judgment of the St. Louis county circuit court in favor of the plaintiff against the defendant for the sum of $4,500 in an action instituted in the St. Louis city circuit court, and taken thence to the county circuit court by change of venue. The petition is as follows:

"The plaintiff, for his petition, states that he was at all the times herein mentioned an attorney at law; that defendant was at all the times herein mentioned, and still is, a corporation under the laws of Missouri; that the plaintiff, at the special instance and request of defendant, did, from September 1, 1893, until June, 1896, render to the defendant legal services in and about the affairs of defendant (an itemized account whereof is herewith filed, marked `Exhibit A') of the value of four thousand five hundred dollars, and, being so indebted, the defendant promised to pay the same to plaintiff on demand. Plaintiff states that defendant has failed to pay the same, though frequently thereto requested. Wherefore he prays judgment for ($4,500) four thousand and five hundred dollars, interest, and costs.

                                       Exhibit A
                St. Louis & Kirkwood Railroad Company to Geo. W
                                     Taussig
                1893. Sept. to June 1, 1896
                  (1) To preparation of articles of incorporation
                       and services in connection with procuring
                       incorporation ................................   $  150
                  (2) To preparation of ordinances from Town
                       of Kirkwood for right of way through
                       town .........................................      150
                  (3) To preparation of ordinances (2) for franchise
                       from County Court of St. Louis
                       County, and services in connection with
                       procuring franchises from County Court             500
                  (4) To preparation of contracts and instruments
                       for transfer of power house property
                       from Madden ..................................       50
                  (5) To preparation of contracts with Meramec
                       Highlands Co. and legal services in connection
                       with same ....................................     250
                  (6) To legal services in examination of titles
                       of owners of rights of way, preparation
                       of deeds and other instruments, and legal
                       services in connection herewith ..............     750
                  (7) To legal services in procuring increase
                       capital stock ................................     150
                  (8) To legal services in connection with preparation
                       of first mortgage bonds and
                       deeds of mortgage ............................     250
                  (9) To legal services in connection with preparation
                       of bonus subscriptions .......................     150
                 (10) To legal services in connection with suits
                       against St. Louis Trust Co. for conversion
                       and for removal as trustee ...................     500
                 (11) To legal services in connection with preparation
                       of contract with Geo. W. Baumhoff .............    100
                 (12) To legal services in connection with settlement
                       of claims for damages for personal
                       injuries by accident of March 8
                       1896 .........................................   1,500
                                                                       ______
                                                                       $4,500
                

The substance of the answer is: "First. A plea to the jurisdiction. Second. A general denial of all the allegations of the petition. Third. That at the time, prior to, and on or about the date of the incorporation of the defendant it was mutually agreed between the plaintiff and the other promoters and incorporators of said company that the company should be organized and managed without any expense to the company for and on account of any services of any of the promoters, excepting Mr. Houseman; and that all of the acts done by plaintiff for or on behalf of defendant, whether as secretary, director, or otherwise, were done pursuant to such agreement, and without any promise or agreement on the part of defendant to pay for the same, or any of them. Fourth. That during the entire time plaintiff was a director and secretary of defendant, and that no salary or compensation was ever fixed by the articles of the association, or by resolution of the board of directors entered of record on the minutes of such board. Fifth. That all of the acts done in connection with the suits against the St. Louis Trust Company were done in connection with other attorneys and plaintiff jointly, and that therefore there is a defect of parties plaintiff as to such item. Sixth. A plea of payment."

The reply is a denial of all and singular the allegations of new matter contained in the answer.

At the inception of the trial the defendant objected to the introduction of any evidence under the petition on the ground "that the items of the account are not set out in the petition, and that the account which is filed with the petition is not an itemized account," and in the course of the trial a like objection was made to the introduction of evidence upon each item of said exhibit; all of which objections were overruled, and defendants excepted. Other objections of the defendant to the rulings of the court upon the admission of evidence are not of sufficient merit to require notice. At the close of the plaintiff's evidence and at the close of all the evidence the defendant asked the court for a peremptory instruction that the plaintiff could not recover,...