The Greensboro And New Castle Junction Turnpike Co. v. Stratton

• Decision Date: 11 October 1889
• Docket Number: 13,788
• Citation: 22 N.E. 247,120 Ind. 294
• Parties: The Greensboro and New Castle Junction Turnpike Company v. Stratton
• Court: Indiana Supreme Court

22 N.E. 247

120 Ind. 294

The Greensboro and New Castle Junction Turnpike Company v. Stratton

No. 13,788

Supreme Court of Indiana

October 11, 1889

From the Henry Circuit Court.

Judgment affirmed, with costs.

J. M Brown and R. Warner, for appellant.

J. H Mellett and E. H. Bundy, for appellee.

OPINION

Olds, J.

This is an action to recover for the value of work and labor done and performed by the appellee on the turnpike owned by the appellant at appellant's request, and for gravel and materials furnished by appellee to appellant, and used in the construction and repair of the road-bed and bridges of said turnpike.

There is no question as to the pleadings presented by the record. It is stated by counsel for appellant in his brief that a demurrer was sustained to the fourth paragraph of answer, and that the court erred in sustaining the demurrer, but the demurrer is not in the record.

The case, as stated by counsel as shown by the evidence, is to the effect that in 1877 the defendant company was organized to build a turnpike, and an amount of capital stock subscribed and directors to manage the affairs of the corporation elected, the appellee being elected one of the directors. The directors collected all the capital stock subscribed, and expended the same in the construction of the road; the funds were insufficient to complete the road; after the funds were exhausted, the directors made an effort to have a tax levied to complete the road, but did not succeed. The directors, then consisting of appellee and Wood and Copeland, agreed by and between themselves to finish the road, appellee to do three-fifths of the work and the others one-fifth each, and, pursuant to this agreement, they completed the road and put it in operation and collected toll for its use. Appellee was from time to time re-elected director, and served as such until the first of the year 1886, when he was succeeded as director, and brought this suit.

The only alleged error properly presented by the record and discussed, is the giving of instruction No. 2 by the court, which instruction is as follows:

"2d. If, at the time the work and labor sued for was done, the plaintiff was a director of the defendant company, no contract or agreement between him and his co-directors concerning said work or the price to be paid therefor, or the necessity or propriety therefor, could bind the company. But if the stock and means of the company were exhausted in building the road, and it was impossible by reason thereof to complete the road, and the directors agreed among themselves to complete the road, each doing a portion of the work necessary to finish the road according to the respective amounts of their stock, and charge the same to the company, and, in pursuance thereof, the plaintiff did a portion of the work sued for in finishing and completing the road, and it was to the best interest of said company to do said work, and it was necessary and proper to be done, taking into consideration all the circumstances and conditions of the road, the company would be liable in this action for the reasonable value of the work done."

In Waterman's Law of Corporations, vol. 2, p. 367, the law is stated as follows: "When a director performs duties outside of those devolving upon him as a director, under an appointment by a resolution of the board, he will be entitled to compensation." Again, in vol. 1, p. 461, it is said "A director, by resolution of the board, may be empowered to...