16 Mont. 81 | Mont. | 1895
This is an action brought by the plaintiff to recover for labor and services performed as superintendent of the defendant’s mines, and for money expended and goods furnished for its use and benefit. The answer denies all the allegations contained in the complaint, as to the indebtedness sued for, and pleads a counterclaim against the plaintiff.
The theory of the defense is that the plaintiff was a trustee of the defendant, a corporation, and a large stockholder therein; that he had never been appointed superintendent by the board of trustees, and his compensation fixed, as required by the bylaws of said corporation; that he was trustee and secretary of the company, and was employed by the day at $3.50 per day for what time he actually worked in the mines, and that the service he seeks compensation for in this action, as superintendent, was rendered by him as trustee, without any contract for pay therefor, either express or implied; that he had been paid all the company owed him on any account whatever. The defendant sets up a counterclaim against the plaintiff for stock of the company which it alleges plaintiff sold, and failed to account for the money obtained thereby.
There were three questions of fact submitted to the jury: First. Did the plaintiff perform the service, expend the money, and furnish the goods, as alleged in the complaint, for the use and benefit of the defendant ? Second. Did the plaintiff perform such service outside of his duties as trustee, secretary and stockholder, and under such circumstances as to clearly raise the presumption that he and the trustees understood that he was to be paid therefor ? Third. Was the defendant’s counterclaim established by the evidence ?
These questions of fact were all submitted to the jury, under fair instructions, we think. It is true there was a conflict of evidence upon all these issues. But it was the province of the jury to settle this conflict: They determined the questions in favor of the plaintiff. We think there was sufficient evidence' to support the findings.
The defendant contends that the plaintiff could not recover upon an implied contract for services as superintendent, insist
“The jury are further instructed that if they believe from the evidence that the plaintiff was, during the time he claims to have acted as manager or superintendent of the defendant company, the secretary or trustee of the defendant company, then plaintiff cannot recover compensation for services rendered by himself for defendant company upon an implied contract, unless it be established by a clear preponderance of the evidence — First, that the services were clearly outside his ordinary duties as secretary or trustee; second, that they were performed under circumstances sufficient to show that it was well understood by the proper corporate officers, as well as himself, that the services were to be paid for by the defendant. company. ’ ’
W e see no reason why a party may not recover of a corporation .for such services, under the same circumstances that would permit of a recovery against a partnership or individual.
The errors assigned pertain principally to questions of the insufficiency of the evidence to warrant the findings of fact. Questions of the weight and sufficiency of evidence, as well as the credibility of the witnesses, are determined by the jury, and in this case we do not feel authorized to disturb their determination, or the judgment rendered in accordance therewith. The judgment is affirmed.
Affirmed.