8 Neb. 251 | Neb. | 1879
On the thirteenth day of December, 1875, the Brown-ville, Eort Kearney & Pacific Eailway Company and the Midland Pacific Eailway Company were consolidated, the new company taking the name of the Nebraska Eailway Company; In November, 1877, the defendant commenced an action against the Nebraska Eailway Company for the value of services rendered by him as president of the Brownville, Eort Kearney & Pacific Eailway Company from September 18, 1871, to October 18, 1875, in securing the right of way for and in aiding in the construction of said B., Et. K. & P. E. E. The defendant recovered a judgment in the court below for the sum of $7,500. The cause is brought into this court by petition in error. On the trial of the cause the following articles of agreement were introduced in evidence.
“Articles of. agreement made and concluded this 18th day of September, 1871, by and between Benj E. Smith and "William Dennison of Columbus, state of Ohio, and J. N. Converse of Union City, state of Indi
“If the said party of the first part concludes to construct a narrow gauge road, then the iron rails shall weigh not less than thirty-two pounds to the lineal yard, and if the same be of the ordinary gauge the rails shall weigh not less than forty-five pounds to the lineal yard. That the party of the first part shall secure and pay for all rights of way hereafter to be obtained,, also for the engraving or printing of all stocks, or bonds, and the stamping and recording of the mortgage given
This contract is signed by Smith, Dennison, and Converse, for the party of the first part, and by the Brownville, Fort Kearney & Pacific Railroad Company, by its attorney in fact, whose action was fully ratified by the board of directors of said corporation on the 20th day of September, 1871.
The plaintiff in error set up the foregoing contract in its answer as a defense to the action, and alleged that the defendant in error was a member of the construction company, parties of the first part in the above instrument, and as such had agreed to pay all expenses incurred by said corporation in procuring the right of
Turning to the petition we find the cause of action set forth as follows: “ That from the 18th day of September, 1871, until October 12, 1875, inclusive, he was the president of the said Brownville, Eort Kearney & Pacific Railroad Company, and that during said time he devoted his whole time to promoting the interests of said company in procuring the right of way and in all things aiding the construction and management of said railroad company, and that said services so rendered by plaintiff were reasonably worth the sum of three thousand dollars for each and every year,” etc.
First. A promise by the construction company — of which Lett was a member — to pay to the party of the second part, or on its behalf, all of the indebtedness of the same of every nature incurred in grading and constructing the railroad, not to exceed the sum of fifty thousand dollars.
Second. The corporation was to secure the necessary right of way, depot grounds, gravel beds, stone quarries, etc., and was to issue stocks, bonds, and mortgages from time to time as directed by the construction company. The construction company to pay all necessary expenses of the same.
Third. The corporation was to turn over to the construction company all the property owned, and assets acquired or to be acquired, with certain exceptions specifically designated, and the corporation was required to perform such official acts as were necessary to be performed by a board of directors, all expenses and outlay to be borne by the construction company.
"We are told that there is no proof that Mr. Lett was in the employment of Converse, McCann & Co. But it was unnecessary to prove an employment. It is admitted that he was a member of the firm, and as a member of such firm had agreed to pay for all services rendered by him as president of the corporation.
The two leading features of the contract of partnership are, a common interest in the stock of the company, and a personal responsibility for the partnership engagements. 3 Kent Com., 24. Each individual member of a partnership is answerable in solido for the whole amount of the debts, without reference to the proportion of his interest, or'the nature of the stipulation between him and his associates. Id. 32.
It is clear that no services were rendered by Lett as president of the corporation, which he as a member of
Reversed and Remanded.