111 Cal. 328 | Cal. | 1896
Judgment went for plaintiff, and defendant, a corporation, appeals.
There are two counts in the complaint. In the first it is averred that on September 11, 1891, there was an account stated between the parties for moneys before that time expended by plaintiff for the use of defendant; that the balance on said account stated was on said day
1. The court found, on the first count, that on September 11, 1891, defendant was indebted to plaintiff fpr moneys expended for defendant’s use in the sum of $10,050.07, “ and that on the said eleventh day of September, 1891, the plaintiff stated his account for such moneys to the defendant in the said sum of ten thousand and fifty and seven one-hundredths ($10,050.07) dollars, and that defendant accepted the account as stated, and agreed in writing to pay the same.” It is further found that defendant afterward paid plaintiff $2,000, and that at the commencement of the action there was due thereon $8,050.07, with interest from said September 11th at seven per cent per annum—for which amount judgment was rendered.
Appellant contends that the finding of an account stated on September lltli for $10,050.07 is not supported by the evidence, and is against law; and the contention must be sustained. As to the question whether there was any stated account at all on September 11th—that is, whether the appellant then agreed to any account presented by respondent as a final settlement—the evidence is conflicting. But, if we assume that there was an account stated on that day, it is clear that it was not for $10,050.07, but for only $3,550.07. The contract found is not the one proved. The statement on motion for a new trial contains the following: “Said account was headed, ‘ Mt. Tecarte Land and Water Company in account with D. O. McCarthy,’ and consisted of a large number of items of debit against the defendant running from May 15, 1888, to September 2, 1889, and aggregating the sum of $10,050.07, with a credit under date of July 2, 1891, of $6,500, and. showing a net balance of $3,550.07. The aggregate of the account, the credit
“$10,050 07
“July 2, 1891, Cr. by issue to D. 0. McCarthy of 65,000 shares of stock at ten cents per share ...................... 6,500 00
“Balance due $3,550 07”
And immediately following was an indorsement as follows:
“Approved and ordered paid at a meeting of the board of directors held September 11, 1891.
“ E. M. Dean, Secretary,
- “By B. F. Moore, Ass’t Sec’ty.”
(The respondent withdrew from his offer of the account the indorsement of the secretary, Dean. Appellant objected to this withdrawal, because, then, only a part of the account was offered, and his objection was overruled. If that indorsement be not considered, then there is little evidence tending to show that any account was agreed to by appellant; but that is not important here, because we are now assuming that there was some kind of a stated account on September 11th.)
There is no evidence showing, or tending to show, any account stated on September lltli, other than the one described in the part of the transcript above quoted; and that account clearly showed a balance of only $3,550.07, and for the latter sum alone could the appellant be held liable upon the contract which is created by a stated account—which is a new and independent contract. (See Coffee v. Williams, 103 Cal. 556, and cases there cited.)
The finding was, no doubt, based upon some occurrences which took place long after the alleged stating of the account on September lltli, and which, keeping in view the nature of a stated account, should not have been considered. The $6,500 worth of stock of the corporation defendant, with which respondent credited
It is also averred in the complaint that the account was restated on or about the 24th of November, 1891;
2. In the second count it is averred that on or about February 1, 1888, the defendant employed plaintiff as its general manager and agreed to pay him for his services as such a fair and reasonable compensation; that he accepted such employment and remained its general manager continuously from about February 1, 1888, to about November 24, 1891, and that his services during that period were reasonably worth $23,000—no part of which had been paid. In the answer all these averments are denied; and it is averred that the cause of action, if it ever existed, is barred by subdivision 1 of section 339 and by section 337 of the Code of Civil Procedure. During all the time mentioned in the complaint the respondent was a large stockholder and a director of the corporation defendant.
The court found that on June 6, 1888, the defendant, by a resolution of its board of directors, appointed the plaintiff its superintendent, and that lie then entered upon the duties of “said office,” and discharged them until November 24,1891; that during that time he assumed and discharged the duties of general manager with the knowledge and consent of the directors, but without any express appointment until September 2, 1891; and that on said September 2, 1391, he was, by a resolution of the board, appointed “ superintendent and general manager.” It was further found “ that no order was ever made by the board of directors of the defendant, nor any contract or agreement by any of its officers, fixing the compensation of plaintiff for his services or the time of payment thereof; but that it was nevertheless the understanding and expectation of the plaintiff and the board of directors of the defendant, at the time of plaintiff's said appointment and during the entire period of his services, that he was to receive reasonable compensation for such services.” It was also found that the value of his services during said period was $150 per
Counsel for appellant contends that the evidence is insufficient to support the finding that “ it was nevertheless the understanding and expectation of the plaintiff and the board of directors ” that respondent was to receive compensation; but that, on the contrary, the evidence shows that the company was in poor financial circumstances, and that it was understood that none of the directors were to receive compensation for what they should do in the interest of all the projectors of the water scheme which they had in view. The preponderance of the evidence certainly seems against any understanding or expectation that respondent was to be paid; but, under our views of the case on other points, it is unnecessary to decide whether there was any material evidence sufficient to justify said finding. In the first place, we think that the court erred in ruling upon the admissibility of evidence offered on that point. As the respondent was a stockholder and director of the, corporation, he was not entitled to compensation for services rendered by him for' it, no matter under what name or official position, unless there was some kind of a contract for such compensation. Now, there is no pretense that there was an) express contract for compensation; consequently, if there was any such contract, it must have been an implied contract arising out of and inferable from the situation and relation of the parties; and any fact which could reasonably throw light upon that relation, or tend to show the intention of the parties, was relevant and admissible. (Barstow v. City R. R. Co., 42 Cal. 465.) And we think that the court erred in sustaining objections to evidence offered by appellant for that purpose.
There is another point in the case Avhich demands notice. The court found that no part of respondent’s
But a cause of action is not upon a contract founded upon an instrument in writing, within the meaning of the code, merely because it is in some way remotely or indirectly connected with such an instrument, or because the instrument would be a link in the chain of evidence establishing the cause of action. In order to be founded upon an instrument in writing, the instrument must, itself, contain a contract to do the thing for the nonperformance of which the action is brought. In Chipman v. Morrill, 20 Cal. 132, it was held that an action by one joint maker of a promissory note against the others for contribution was not upon the note as “an instrument in writing” within the meaning of the statute, and was barred in two years. In that case Justice Field, delivering the opinion for the court, said: “ Our conclusion is that it is not thus founded;
The judgment and order denying appellant’s motion for a new trial appealed from are reversed, and a new trial is granted.
Henshaw, J., and Temple, J., concurred.
Hearing in Bank denied.