95 Mo. 467 | Mo. | 1888
The Keokuk Northern Line Packet Company was in 1880, and for many years prior thereto, a corporation formed for the purpose of building, purchasing, employing, and using steamboats and barges for the transportation of freight and passengers upon the Mississippi river. In October, 1880, S. C. Clubb was appointed its receiver, and brought this suit to
The answer of defendant, after denying the right of the receiver to maintain this suit, and denying that the corporation had any interest in said mail contracts or either of them, then sets up and avers that all the moneys received by him under said contracts over and above the expense incurred in receiving and collecting said moneys from the government in 1879 and 1880 were paid to plaintiff, and that said plaintiff received the full benefit of all surps paid defendant and during the time plaintiff carried said mails. On the trial plaintiff’s bill was dismissed and judgment rendered for defendant, from which the plaintiff has appealed.
Waiving the question raised by the answer in reference to the right of Olubb, the receiver, to maintain this suit; two questions are left in the case, the first of which is, can the defendant as contractor for carrying said mails be required to account to plaintiff for, what le received under said contract, and ■ if so, to what extent ? The second is, does' the evidence show that
An rn°\ver to these questions depends upon the circumstances under which these contracts were made, and the ability of plaintiff to perform the service required in carrying said mails. It appears from the evidence of Pnvidson that, prior to the first of July, 1879, Mr. Rhodes, at that time a director of the company, being; authorized by Pavidson, president of the company, went to Washington to secure a contract with the government for the company to carry the mails between St. Louis and Keokuk which resulted in a failure to get the contract. Subsequently, at the request of the defendant, Mr. Kerens went to Washington for the same purpose and also failed to accomplish it. It also appears that, about July, 1879, defendant authorized said Kerens to make another application for the company for a contract, which being refused» defendant then made an arrangement to make an application on behalf of defendant, whereby it was, agreed that if defendant could get twenty thousand dollars a year Kerens was to have the excess over twenty thousand dollars, as compensation for his services in obtaining the contract, collecting the money, and making settlements with the government as Davidson’s .agent, said Kerens acting in that behalf under 'a power of attorney. This resulted in a contract, between the government and Davidson for carrying the mails by boat between St. Louis and Keokuk from the first 'of July, 1879, for which Davidson was to receive twenty-two thousand four hundred and sixty-four dollars per annum. The evidence shows that defendant having thus become contractor employed the boats of the Keokuk Northern Line Packet Company to the extent of its capacity to perform the required service,
It appears that, upon the termination of said contract, the plaintiff company through Mr. Kerens made application for a new contract to carry the mail from St. Louis to St. Paul and intermediate points, which being refused, defendant then, through said Kerens, succeeded in obtaining a contract to carry the mails between •said points, and was to receive seventy-one thousand, one hundred and ninety dollars per annum for the service, •and said Kerens was to receive, as compensation for services rendered and making settlements and collecting from the government, all in excess of fifty thousand dollars, or thirty-three and a third per cent. Prom the first ■of July, 1880, till the first of January, 1881, the evidence tends to show that the plaintiff company carried the mails under this second contract seventy-four thousand five hundred miles, P. S. Davidson’s boats, forty-five hundred miles, and the Eagle Packet Company, thirty-five hundred miles. It also appears in evidence that in October, 1880, Clubb, the receiver of the Keokuk Northern Line Packet Company, refused to have anything to do with this contract, but subsequently assented to the use of the boats in carrying the mail. It also .appears that the plaintiff company never operated any ■boats above the city of St. Louis after the first of January, 1881, and that the second contract was discontinued on the thirty-first of March, 1881, and an allowance of one month ’ s pay allowed the contractor on its ■discontinuance.
It appears' from the evidence that, under the first
That directors and officers of corporations occupy positions of trust, and must act in the utmost good faith, cannot be questioned. They will not be allowed to deal with the corporation funds and property for their private gain. They have no right to deal with themselves and for the corporation at the same time, and they must account for the profits made by the use of the company’s assets and for moneys made by a breach of trust. Ward v. Davidson, 89 Mo. 458, and cases cited. Davidson, as president of the packet company, having endeavored to get these mail contracts for the company, and having failed, was not forbidden by the principle above stated from making a contract in his own behalf for carrying these mails, but after having done so, his relation to the packet company required that he should use all the facilities afforded by the packet company in performing the contract, and under the principle above announced, he will not be allowed to make profit out of such use, but will be held to account to the company for all that he received for the service performed by the company in such use. Twin Lick Oil Co. v. Marbury, 91 U. S. 587.
The evidence in this case shows that the boats of the
The trial court having these witnesses before it, gave credence to them and dismissed plaintiff’s bill, and we see nothing in the evidence authorizing us to discredit them, and the judgment is, therefore, affirmed,