Tishomingo Electric Light & Power Co. v. Burton , 6 Indian Terr. 445 ( 1906 )

Gill, J.

(after stating the facts). Appellants first, second, and fourth specifications of error are that the court refused to dismiss the action on their motion, for reason of misjoinder of parties and misjoinder of causes of action. Mansfield’s Dig. § 5102 (Ind. Ter. Ann. St. 1899, § 3307) provides for what causes the court may dismiss an action. Neither misjoinder of parties nor misjoinder of causes of action appear as reasons for dismissal. Instead, the statute expressly says, Mansfield’s Dig. § 5028 (Ind. Ter. Ann St. 1899, § 3233): “The defendant may demur to the complaint where it appears on, its face either: ‘Fourth, that there is a defect of parties plaintiff .or defendant.’” Mansfield’s Dig. § 5016 (Ind. Ter. Ann. St. 1899, § 3221) provides: “The court at any time before the defense shall on motion of defendant strike out of the complaint any cause or causes of action improperly joined with others.” Thus, it appears that there was no error by the court in refusing to dismiss the action.

Appellants’ third specification of error is that the court erred in overruling the motion to strike out a portion of the complaint. The motion was as follows: “Now come defendants in said cause and move the court to strike from the complaint of plaintiff the demand made against P. T. Foley in said- complaint for the sum of 1780, for the reason that said suit is brought against P. T. Foley and the Tishomingo Electric Light & Power Company, making separate and distinct demands —a portion of said demand being against P. T. Foley, and a portion, against the Tishomingo Electric Light & Power Company.” While this motion may be open to criticism as not being altogether definite and specific, still it does challenge the court to an examination of the complaint to ascertain whether any separate demand is contained therein as against the power company from the demand, if any, against said Foley, and calls upon the court to strike such separate demand, if any, from the complaint. The complaint' alleges an employment of appellee by Foley to do a certain thing — that is, to go to Tishomingo and secure a franchise for 20 years from the council of said town for the “exclusive right to conduct an electric light and power company, and otherwise promote the interests of said corporation when said franchise was obtained —that appellee performed the services pursuant to such request. This employment was by Foley as an individual. There is no allegation that the appellant power company was in existence at the time the contract was made, but, on the contrary, the allegation is that appellee’s services procured for Foley an exclusive franchise for an electric light and power company for a period of 20 years, and that such services were reasonably worth the sum of $100.” Certainly, judgment could not be entered against appellant power company for such sum or any part of it.

The complaint then charges that the defendant, Foley, employed plaintiff to superintend the construction of a building-necessary for the conduct of said business and as its general manager, and that plaintiff was to receive $60 per month for acting as general manager, and did act as general manager for 12 months; that," as such general manager, he expended $9 for stamps and stationery, and furnished defendants $3 in cash, and paid for their use $50. The previous allegation is that defendant Foley is president and principal owner of the Tishomingo Electric Light & Power Company for which company these services were performed, and for the use of which company the moneys were advanced. In what way can P. T. Foley as an individual, although president of the power ' company, be held liable individually for the debt of the corporation? Certainly the president of a corporation cannot individually be responsible for the debt of such corporation. In this complaint we have two distinct propositions: First, that a service was performed for P. T. Foley, as an individual, which was reasonably worth $100. Second, that the Tishomingo Electric Light & Power Company, a corporation, used the services of the appellee for 12 months as its manager at $60 per month, and that such services were worth $720, and that appellee advanced $62 of his money for the use and benefit of said corporation while so acting as general manager. Certainly judgment could not be entered against appellant Foley as an individual for the value of services rendered to said appellant power company in the sums claimed,' to wit, $782, and, upon the court’s attention being challenged to the matter by motion to strike out this portion of the complaint as against Foley, it should have sustained such motion, and its action in overruling it was error. The evidence of appellee upon these matters distinctly shows that said claims were separate and distinct. He says: “I was sent to Tishomingo by P. T. Foley in 1902 to secure an exclusive franchise for an electric light plant from Parsons, Kan. I came to Tishomingo in 1902 and secured for P. T. Foley and myself an exclusive franchise for an electric light plant. I took the matter up with the Commercial Club and discussed same with the club, and the franchise was granted later by the city council to P. T. Foley and Z. T. Burton. After the franchise was granted, Mr. Foley purchased the machinery and I superintended the construction of the plant. After the completion of the plant the franchise was sold to the Tishomingo Electric Light & Power Company by P. T. Foley and Z. T. Burton. Foley wrote to me to make and send him a deed, and I made a deed to the Tishomingo Electric Light & Power Company for the consideration of $1. My services in looking after and managing the plant after it was completed were reasonably worth the sum of $60 per month,- and I was to have stock to compensate me for my services.” Now, in what way, under this evidence, can it be claimed or assumed that the service rendered by appellee for the corporation be charged up against Foley as an individual on a quantum meruit, especially when the appellee says that he was to take his pay in stock in the corporation? Yet, in the verdict of the jury, without any order of court striking out the Tishomingo Electric Light & Power Company they found against the defendant Foley alone in the sum of $400, and the court, without any order striking out the Tishomingo Electric Light '& Power Company as party defendant, entered up judgment against P. T. Foley as an individual on the verdict for $400. The only testimony in the case showing liability on the part of Foley adduced by appellee was for services rendered of the reasonable value of $100. It was the duty of the court to have stricken out of the complaint as party defendant the Tishomingo Electric Light & Power Company, and all claims against said company. Had the court done this 'the claim then would have been against P. T. Foley for the value of services rendered him to the amount of $100, and the jury could not, under such claim, have rendered a verdict for more than $100. Upon presentation of the motion for a new trial, the verdict should have been set aside and new trial ordered. The motion to strike out of the complaint the claim against the Tishomingo Electric Light & Power Company in the sum of $782 should be sustained, and the cause again submitted to a jury.

The cause is reversed and remanded, with directions to the lower court to proceed in accordance with this judgment.

Clayton and Lawrence, JJ., concur.