Hall v. Vermont & Massachusetts Railroad , 28 Vt. 401 ( 1856 )

The opinion of the court was delivered by

Isham, J.

The auditor has reported the sum of $893.55, as being due to the plaintiff on his account, for which sum judgment was rendered by the county court and on which both parties have taken exceptions. The charges in the plaintiff’s account, No. 80, 81, 82, amounting with the interest thereon to the sum of $119.39, were properly disallowed. Those services were rendered by the plaintiff at Boston, in conjunction with other citizens of Brattleboro, in procuring the charter of this company, and they appear to have been voluntarily rendered, as - it was anticipated by him that the Construction of the road would give an increased value to his real estate. The plaintiff could not have been employed by the defendants to render those services, for the corporation at that time had not a legal existence, nor has there been any subsequent promise to pay for them; and certainly, none can be implied against parties, when, at the time the services were rendered, they were incapable of making an express contract.

The charges No. 83, 84, 85, 88, 90, amounting to $ 18,12 were for services in attending various meetings of the corporators^ after the charter was granted, and previous to the organization of the company in the choice of directors. Those charges, we think, Viere properly allowed. The plaintiff with others and their successors were, by the charter, made a corporation, having the powers and privileges, and subject to the duties and liabilities contained in the general act of Massachusetts,- relating to railroad corporations. Among other matters required by the charter, subscriptions-to the capital stock of the company to the amount of five thousand shares, were necessary before án organization could be perfected. The duty rested up’ón the corporators to do whatever Was required by the charter to effect that result. It may be true that the company Were not invested with full corporate powers until after the stock was subscribed, and their organization perfected in the choice of directors ; yet, the corporation was in esse before that event; it had an inchoate existence, and the corporators had the power, and were so far the agents of the corporation as to bind them by any act which they Were required to do, or which was necessary to perfect their organization under the charter. Upon that principle was decided the case of the Vt. Central R. Co. v. Clayes, 21 Vt. 30 The auditor has found that the services were necessary, and though no express promise has been made by the defendants to pay for them, we think, under the circumstances, one will be implied.

The charges Nos. 86, 87, 89, 91, 92, 93, 94, 1, 3, 5, and the charges for cash expenditures, Nos. 4, 6, 8, were also, we think, properly allowed. It appears from the report of the auditor that on the 21st of May, 1844, the corporators passed a vote that “all “ reasonable expenses incurred in taking stock shall be audited and “ allowed by this board.” At the same time the plaintiff and one Everett were appointed a committee to obtain stock subscriptions at Boston. In pursuance of that vote stock subscriptions were procured, so that the company were organized on the 22d of November, 1844, and directors were chosen. On the 15th of January, 1845, a vote was passed by the directors, of which board the plaintiff' was a member, “ that a committee be appointed to obtain additional subscriptions to the stock of the corporation to an amount not exceeding $ 300.000, and to allow such compensation as the board shall deem proper,' — provided that the compensation shall, in no case, exceed one per cent on the amount of the subscriptions so obtained.” The charges above enumerated are for services rendered under those votes. The auditor has stated that the services were rendered, that fhe charges are reasonable in amount, and, the corporation having received the benefit of them, we think they are liable for the amount allowed. We are also satisfied that under the vote of May 21, 1844, the plaintiff’s claim is not limited to cash expenditures merely, but that he is also entitled to a reasonable compensation for Ms personal services. In the case, Regina v. The Gov. & Guard of the Poor of Kingston on Hull, 20 Eng. L. & Eq. R. 149, the words “ expenses incurred” were limited to cash expenditures. In that case the town clerks were directed by act of Parliament to prepare lists of persons entitled to vote for members of Parliament, and the expenses incurred were to be repaid. Frojn the phraseology of the act, it was considered to be the intention to add to the official duty of the town clerks the performance of that duty without additional compensation, except for cash advances. That such additional duties may be imposed on public officers in that manner, was decided in that case, as also in the case of Jones v. Mayor of Carmathan, 8 Mes. & Wels. 605; But, we think, a different construction should be placed on this vote of the company. The plaintiff was not in the disehaz’ge of the duties of a public officer, neither was it competent for the board of corporators to impose on Mm the performance of those duties without compensation. The vote contains an express request for Mm to perform those services, and, we think, the intention was that he should be paid for them.

The charge No. 7, under date of February 24, 1845, for 18 days services at Boston, was allowed to the plaintiff; but we are unable to perceive any ground on which that allowance can be sustained. The vote of the corporators of May 21, 1844, was abrogated by the choice of directors, and by the vote of the directors of January 15, 1845. This vote of January 15 was rescinded on the 6th of February, 1845, when it was voted by the directors that “ the vote passed January 15th, concermng obtaining subscriptions azid paying a compensation therefor, be and hereby is rescinded.” On the 13th of February, 1845, the stockholders voted, “ that no bills for personal services and expenses for procuiing subscriptions for stock be allowed to any person unless employed by the corporation, and that no compensation shall be allowed to the directors of the corporation for their services in that capacity.” Independent of the vote of the stockholders on the 13th of February, concerning the effect of which we have no occasion to malee any remarks, we thizik the plaintiff has no right to charge for his personal services, upon the strength of any of those forma’ votes. For cash advances during the period the plaintiff was directoi’, it appears that no objections were made to tlieir alIowance3 except the statute of limitations. To justify the allowance of this charge, therefore, it should appear that those services were rendered, and that the corporation, by some act, have recognized his employment for that purpose with the intention of making compensation. No such fact appears in the case. The plaintiff must have understood, after the votes of February 6th and 13th, that no compensation for personal services w7as to be made. As a general rule, directors are not entitled to compensation for their personal services as such, unless they were rendered under some express contract or vote of the company to that effect; Ang. & Ames on Cor. 255; Dunstan v. Imperial Gas Co., 3 Barn. & Ad. 125. That charge, therefore, should have been disallowed, as were all the other charges for his personal services subsequent to the passage of the vote of February 13th, 1845. The reasons for the disallowance of one, exist for the disallowance of the others.

The defendants have interposed the statute of limitations to all the charges in the plaintiff’s account previous to Augnst 21, 1845. The writ in this case was issued August 21, 1851. On this question it is only necessary to observe, that the defendants are a foreign corporation, and first had known attachable property in this state, in the year 1847. Upon these facts the case falls within the exceptions of the statute. The Comp. Stat. 379, §14, provides that if a person shall be out of the state when a cause of action of a personal nature accrues against him, the action may be commenced within the time limited, after such person shall come within the state. If the cause of action has accrued, and the person leaves the state before the statute has run, and has no known attachable property within it, the time of his absence is not to be taken as a part of the time limited for the commencement of the action. Corporations are undoubtedly within the provisions of this act, and until the defendants had attachable property in this state, no suit could have been commenced by the plaintiff on this claim. There was no mode of service by which the corporation could have been made subject to the jurisdiction of the courts in this state, until the year 1847, which is less than six years previous to tire commencement of this suit. The statute, p. 244 § 19, directing all writs against a corporation, to be served by leaving a copy with the clerk of the corporation, Or in his absence with some of its officers, and in their absence* with one of the stockholders, has reference exclusively to corpora*1 tions within this state. The account, therefore, is unaffected by the statute of limitations. We perceive no error in the decision of the county court in this case, except in the allowance of the charge No. 7, under the date of February 24, 1845* which, we think* should have been disallowed.

The judgment of the county cburt must be reversed, and the amount of that charge with the interest thereon to September 21, 1854, must he deducted,from the amount allowed by the auditor* and a judgment rendered for the plaintff for the balances