292 F. 19 | 9th Cir. | 1923
(after stating the facts as above). The plaintiff assigns error to the ruling of the trial court that all the demands of the plaintiff which accrued prior to 1917 were barred by the statute of limitations. We are not required to discuss the assignment for the reason that the ruling of the court, whether erroneous or not, could have had no effect upon the determination of the case; the jury having found against the plaintiff on his later claims of the same kind which were not barred by the statute. If there was error, it was harmless. The same is true of the assignment that the court .erred in ruling that Miller’s action in seconding the motion for the payment of the 5 per cent.' commission to the defendant and voting for the same estopped him, and his assignee the plaintiff, to assert that the allowance of that commission was illegal and unauthorized, for the plaintiff presented in this third cause of action a demand of the same nature as that which was assigned to him by Miller, and which was unaffected by the question of an estoppel, and the jury upon that demand found in favor of the defendant.
We find no error in the refusal to instruct the jury that the defendant while acting as trustee could not recover pay for past services, in the absence of some express provision therefor by statute, charter, or by-laws, or some agreement to that effect made and entered into before the services were rendered. The corporation was dissolved after having conducted its business for a period of about 19 years. It had offices at Tacoma, Wash., and branches in Alaska, British Columbia, and Scotland. It owned ranches in Alberta. It had 5,000 head of cattle. It raised large crops of wheat. It owned and operated steamers and cold storage plants. The president was not by the bylaws made the manager of the corporation. The liquidation of the assets was a matter entirely distinct from the management of the corporation. There was evidence that the services rendered by the defendant were of a value much greater than the sum which was paid him, that the liquidation was very ably managed, that it was all done under the immediate direction of the defendant, and that it was wholly outside of the scope of his duties as fixed by the by-laws. In Blom v. Blom Codfish Co., 71 Wash. 41, 127 Pac. 596, the Supreme Court of Washington affirmed the general rule that where a president of. a corporation renders services as a general manager with the consent of the other officers, he may recover on an implied contract for such services without any express contract therefor. In Fitzgerald Const. Co. v. Fitzgerald, 137 U. S. 98, 11 Sup. Ct. 36, 34 L. Ed. 608, the court held that while an officer of a corporation may recover compensation for performing the usual and ordinary duties of his office, only when there is an express agreement therefor, yet he may be entitled to com
It is contended that the court erred in excluding proffered evidence that at the time when Miller seconded and voted for the motion for a 5 per cent, commission he did not know that the defendant was receiving $1,000 a month or the' 2% per cent, commission which had been paid to him. In the view which we have already expressed of Miller’s action thus sought to be explained, the error, if error there was, was harmless. But we are unable to see how it could be shown that Miller, who was a trustee and had been a stockholder for many years and had attended the stockholders’ meetings, could show that he was ignorant of what was done at the meetings and of the contents of the reports of the accountants.
It is contended that the advisory board had no legal existence, and several assignments of error direct attention to the rulings of the trial court in admitting testimony in regard to the advisory board and communications between the board and the defendant. It was in evidence that when the corporation was organized, 85 per cent, thereof was subscribed in Great Britain, and that the defendant, being unwilling to assume the whole responsibility for the corporation, suggested to the stockholders at a meeting in Great Britain that they appoint a committee to work in harmony with the trustees and officers in America, in order to carry out the wishes of the majority. There could be nothing illegal in the creation and activities of such a board so long as it remained an advisory board. The court below in instructing the jury properly delimited its powers, saying: 4
“This advisory committee was by consent of each and all of the stockholders verbally clothed with power to determine the policy, subject to be approved by the board of trustees, and such action by the board of trustees was taken at the annual meeting of the stockholders and at the first meeting of the*24 board of directors after each stockholders’ meeting. * * * It would not be proper for the corporation to turn over its control to that committee, but it is proper for the corporation to receive suggestions and reports from this-advisory committee and then act upon the matter independently themselves-as a board.”
We find no error for which the judgment should be reversed.
Judgment is affirmed.