Notley v. First State Bank

154 Mich. 676 | Mich. | 1908

Grant, C. J.

(after stating the facts). The circuit judge eliminated from the case the second item in the bill of particulars, holding that plaintiff was entitled to no compensation for what he did in promoting the defendant’s organization. He also eliminated all claim for services as president, but submitted to them the question whether there was an implied contract that plaintiff should perform services outside his duties as president and an implied contract to pay for them. Stated substantially in the language of the circuit judge in his instructions, he left it to the jury to determine whether valuable services were rendered by the plaintiff to the defendant “under such circumstances as would raise a fair presumption that the directors of this bank and the plaintiff, each and both, intended that such services should and would be paid for.” No presumption of an agreement arises from the services which plaintiff claims to have rendered. Martindale v. Wilson-Cass Co., 134 Pa. 348. All the evidence adduced upon the trial is in the record. After a careful perusal of it, I fail to find any evidence that the directors of the defendant, either as a board or individually, had any knowledge of the time that plaintiff spent in the bank during banking hours, or that he was performing any services outside those imposed upon him as president, or that they expected him to spend his time there. The circuit judge instructed the jury that there was no express contract established in writing or by conversation. In other words, that there was no talk between plaintiff and the defendant’s officers from which the jury could find an agreement. If the directors had investigated it and had been informed of the actual situation, they would have ascertained that plaintiff, without any direction from them, was carrying on his own private business at the bank, attending to it substantially the same as before, and using the bank to obtain money to carry it on; that the bank books showed no services or claims for services; that plaintiff was using the bank for his own private purposes in a very questionable, if not an illegal, manner. Can an inference of an agreement be presumed under these circumstances ? If plaintiff did perform any duties outside those of president, it was in securing a few persons to borrow money from the bank, in advising upon some applications for loans, and in securing a few deposits. Can the presumption of an agreement arise from these acts ? What is there to indicate either that plaintiff expected to receive, or the defendant to give, compensation ? The cashier and bookkeeper were meanwhile attending to all the business of the bank, and much that plaintiff claims he did was not necessary for him to do. The same resolution that appointed plaintiff without a salary appointed the cashier and bookkeeper with salaries, thereby showing the clear intent of the parties that the president should serve without compensation. The acts which plaintiff performed, if not strictly within his duties as president, were closely akin to them, and the law does not permit an agreement to be implied under such circumstances, especially where such official makes no claim until the expiration of his term, or until he has been removed from office.

The supreme court of Massachusetts, in Pew v. Gloucester Nat. Bank, 180 Mass. 891, have clearly stated the rule which is quoted with approval by the Supreme Court of the United States in Fitzgerald Construction Co. v. Fitzgerald, 137 U. S. 98. It is as follows:

“A bank or other corporation may be bound by an implied contract in the same manner as an individual may. But, in any case, the mere fact that valuable services are rendered for the benefit of a party does not make him liable upon an implied promise to pay for them. It often happens that persons render services for others which all parties understand to be gratuitous. Thus, directors of banks and of many other corporations usually receive no compensation. In such cases, however valuable the services may be, the law does not raise an implied contract to pay by the party who receives the benefit of them. To render such party liable as a debtor under an implied promise, it must be shown, not only that the services were valuable, but also that they were rendered under such circumstances as to raise the fair presumption that the parties intended and understood that they were to be paid for; or, at least, that the circumstances were such that a reasonable man in the same situation with the person who received and is benefited by them would and ought to understand that compensation was to be paid for them.”

The facts of that case are applicable to those in this. The rule there stated is established by other courts. Citizens’ Nat. Bank v. Elliott, 65 Iowa, 104; Holder v. Railway Co., 71 Ill. 106; Lafayette, etc., R. Co. v. Cheeney, 87 Ill. 446; Lowe v. Ring, 123 Wis. 370; Henry Wood’s Sons v. Schaefer, 173 Mass. 443; Eakins v. White Bronze Co., 75 Mich. 568; St. Jude’s Church of Fentonville v. Van Denberg, 31 Mich. 287; Whittemore v. Kent Scientific Institute, 128 Mich. 518; 2 Cook on Corporations (5th Ed.), § 657. The court should, as requested at the close of the plaintiff’s case, have directed a verdict for the defendant. The like request should have been granted after the defense rested.

This disposal of the case renders it unnecessary to determine the many exceptions to the ruling of the court in the admission and rejection of testimony.

Judgment reversed, and new trial granted.

Blair, Hooker, Moore, and McAlvay, JJ., concurred.