Lowe v. Ring

SiebeckeR, J.

Numerous errors are assigned and urged upon our attention. One of the grounds assigned as error pertains to defendant’s right to recover compensation for services rendered as president of the bank. The issues upon this -claim were submitted to the jury for determination by questions Nos. 19 and 20 in the special verdict. Question 19 was as follows: “Was there a contract, express or implied, between Eing and the bank, that Eing should receive a salary from the bank as president? ” This question the jury answered in the affirmative. It is contended that the proof bearing on this issue is materially, different upon this trial from that upon the former trial, wherein this court held that there was testimony from which a jury might infer an express contract between defendant and the bank, whereby it agreed to pay the defendant a salary for his services as president of the bank. After a painstaking examination of the evidence of both trials, in so far as it is before us, we find that there is a material difference upon this question. On the former trial there was evidence tending to show that the defendant at a meeting of the board of directors demanded that he be •compensated for his services as president after his election to that office, and was then informed by the members of the board that the corporation expected to pay him a reasonable ■compensation for such services, though no formal action was taken fixing the amount. It also appeared that defendant placed reliance on such promises in continuing his services •as president. This evidence called for submission of this issue to the jury, though the evidentiary fact's thus adduced were not of a strong and conclusive character. Upon this trial no such evidence was adduced. There is evidence that defendant had interviews with individual members of the board at times other than at board meetings; that at one *374 meeting of tbe board defendant called attention to bis -claim for compensation and was met witb tbe objection from a member of tbe board that tbe bank ongbt not to pay for sncb services, and that no action was taken by tbe board. We have-discovered no other evidence on this question, nor do counsel point to any in tbe record. This state of tbe evidenc'e leaves-the case without proof of any express contract that defendant should receive a salary for bis services as president.

Tbe question in tbe special verdict upon this issue was to-tbe effect that, if there was an implied contract between tbe bank and defendant to pay for these services, tbe bank became liable therefor. Tbe submission of this question was error. A president of a corporation cannot sue upon an implied contract to enforce a claim for services as an officer, when be is a stockholder or director. Tbe adjudications are-to tbe effect that such officer must show an express contract for compensation as a basis for such a claim. Though this question was not before the court for decision on tbe first appeal, it is apparent from tbe questions decided that tbe court entertained this view. Among tbe authorities in support of this rule are the following: 2 Cook, Corporations, § 657; Commonwealth Ins. Co. v. Crane, 6 Met. 64 ; Illinois L. Co. v. Hough, 91 Ill. 63 ; Farmers' L. & T. Co. v. H. R. Co. 152 N. Y. 251 , 46 N. E. 504 ; Fitzgerald & M. C. Co. v. Fitzgerald, 137 U. S. 98 , 11 Sup. Ct. 36; Sears v. Kings Co. E. R. Co. 152 Mass. 151 , 25 N. E. 98 . Tbe cases in seeming-conflict witb this ruling generally present tbe distinguishing features that tbe services rendered for which recovery was claimed were either for extraordinary services rendered outside tbe usual official duties, or cases where a person- other than a director-or stockholder accepted an election to such a position under some person or body authorized to elect and employ some one not considered witb tbe corporation.

We encounter another difficulty in this question of tbe special verdict, which also affects tbe other questions submitted *375 to tbe jury, whereby they were to find whether there was a contract, “express or implied,” that defendant should receive compensation for the services specified in the several counterclaims. The questions propounded are framed alike in this respect. The one relating to his salary was whether there was an “express or implied” contract for compensation. To this ' the jury answered “Yes.” This answer not only leaves it uncertain whether the jury found there was an express or implied contract between the parties, but we are unable to ascertain whether the jury agreed that either contract was made. A part of them may have found there was an express con- ■ tract, but no implied one; and the others may have reached the conclusion that there was an implied, but no express, contract. Thus it is rendered uncertain whether the jury in fact determined this issue. This difficulty could probably have been successfully avoided by an .appropriate instruction directing the jury to the effect that, whichever fact they found, under the alternative inquiry of this question, must be assented to by all the jurors. But no such information was conveyed to them. Under these circumstances the question is faulty for duplicity, and is fatally defective for uncertainty as to the determination of the issue. Carroll v. Bohan, 43 Wis. 218 ; Gunther v. Ullrich, 82 Wis. 222 , 52 N. W. 88 ; Klochinski v. Shores L. Co. 93 Wis. 417 , 67 N. W. 934 ; Shaw v. Gilbert, 111 Wis. 165 , 86 N. W. 188 ; Gehl v. Milwaukee P. Co. 116 Wis. 263 , 93 N. W. 26 . It may aid in framing single, direct, and .plain questions to omit the words “express or implied” from the question of the special verdict on this and like issues, and embody the necessary information which the jury should possess as to the two classes of contracts in an instruction with a direction that, in order to find either contract as a fact in the case, the assent of all the jurors is necessary to make it a valid verdict. The questions of the special verdict covering the other counterclaims is open to the same objection, which leaves the material issues of the several *376 counterclaims undetermined, and renders a new trial of tlie action unavoidable.

Some other errors are alleged and presented, which should be noted in view of the fact that a new trial must be had. The court instructed the jury with reference to the allowance of interest on amounts found due defendant for services as follows:

“After you have determined such amount, you will compute interest thereon at the rate of six per cent, per annum from the date that these services were completed pertaining to such matter, and the total amount of interest and value so found by you will be the sum which you should insert in your answer.”

Under the decisions of Laycock v. Parker, 103 Wis. 161 , 79 N. W. 327 , and Remington v. Eastern R. Co. 109 Wis. 154 , 84 N. W. 898 , 85 N. W. 321 , interest should not run until a demand has been made “sufficiently specific to inform the debtor of the claim made” to enable him to ascertain what amount, under the circumstances, he ought to pay.

In connection with question No. 19 of the special verdict, the court in effect instructed the jury that the conduct of the officers and agents of a corporation in respect to the payment of a salary to the president for his official services would bind it under the same circumstances as an individual. As we have shown above, this is not the rule between a corporation and its stockholders and directors, when they act as its officers.

Some general exceptions were taken to portions of tlie charge which include two or more distinct propositions. Under such circumstances the exception does not avail to present any question for review. Tebo v. Augusta, 90 Wis. 405 , 63 N. W. 1045 ; Sheppard v. Rosenkrans, 109 Wis. 58 , 85 N. W. 199 ; Dean v. C. & N. W. R. Co. 43 Wis. 305 ; Estate of Kessler, 87 Wis. 660 , 59 N. W. 129 .

Other errors assigned pertain principally to questions de *377 -cided upon the former appeals, and nothing can he added to what is there stated. The exception to the court’s ruling ■upon the objection to the cross-examination of plaintiff and Mr. Tonmans as to transactions with the bank is not likely ■to arise upon another trial, so we need not examine it.

By the Oourt.- — -The judgment of the circuit court is reversed, and the-cause is remanded for a new trial.