Bowen v. Carolina, &c., Railway Co.

13 S.E. 421, 34 S.C. 217, 1891 S.C. LEXIS 44

• Court: Supreme Court of South Carolina
• Decided: June 18, 1891
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McIver.

This action was brought by the plaintiff to recover the sum of five thousand dollars, alleged to be due him for his salary as president of said company from the 27th of November, 1887, to the 27th of November, 1888. In his complaint the plaintiff states as his first cause of action a special contract on the part of defendant company to pay him the said sum of money as his salary for the year mentioned, and his second cause of action is based upon a quantum meruit. The defendant answered, setting up as his first defence a general denial, and for a further defence alleges, that though the plaintiff was president of said company for the year mentioned in the complaint, yet that for a part of that time the railway was in the course of construction, and was not completed until November, 1888, and that plaintiff never had charge of or operated said railway, but that it was under construction by the contractor, George Potts, and that under the contract for the construction of said railway it was expressly stipulated that the Atlantic and Northwestern Construction Company was to pay the salary of the president of defendant company, and that plaintiff accepted the office of president, knowing of such stipulation, and is therefore es-topped from claiming his salary from defendant company.

The records of the defendant company, the contract with the construction company, and the contract with Potts, together with the verbal testimony of witnesses taken in court and by commission, were all offered in evidence. There was also some testimony adduced by defendant, and received against the objections of plaintiff, tending to show that certain assets of the defendant company had been placed in the hands of the plaintiff for the purpose of paying off its debts at the time the contract was entered, into with Potts for the construction of that portion of the road lying between Aiken and Edgefield. The charge of his honor, Judge Hudson, is set out in full in the “Case,” and should be embraced in the report of the case, and under that charge the jury found a verdict in favor of the plaintiff for the full amount of his claim, and judgment being entered thereon, the defendant appeals upon the several grounds set out in the record.

1 The first exception imputes error to the Circuit Judge in not requiring the plaintiff, on the application of defendant, to elect upon which of the two causes of action stated in the complaint he rested his case. To dispose of this exception, it is sufficient to say that the “Case” as prepared for argument here fails to show that any such application was made to the Circuit Judge. We can discover nothing in the record that indicates that this matter was ever brought to the attention of the judge, or that he made any ruling in reference thereto. There is nothing, therefore, for this court as an appellate tribunal to review.

2 The second and fourth exceptions may be considered together. These two exceptions are based upon a misconception of the judge’s charge in reference to the matter therein referred to. His honor merely called the attention of the jury to the contract between the railway company and the construction company, in which the latter had assumed the payment of the president’s salary at the rate of five thousand dollars a year, as one of the circumstances which they might consider in determining the question whether the railway company had agreed to pay that salary to the plaintiff when he was elected president; but he did not say, nor could it be implied from anything he did say, that the defendant company was thereby bound to pay that salary to the plaintiff. He did say, however, and in this we think he was right, that the fact that the construction company had in that contract, to which the plaintiff was not a party, assumed the payment of the president’s salary, would not relieve the defendant company from liability therefor, provided they had received the services of the plaintiff as president under an agreement, either express or implied, to pay him in the one case the amount agreed upon, or in the other the amount which his services were reasonably worth. That contract did not bind the plaintiff to look alone to the construction company for the payment of his salary. There was nothing in it which forbid the plaintiff from holding the defendant company liable for the salary, if any was due, in case the construction company failed to comply with its agreement with the railway company to pay the salary.

3 4 The third exception alleges error on the part of the Circuit Judge in charging the jury that the defendant company set up as a defence that the plaintiff had received certain assets of the railway company at the making of the contract with Potts, out of which the plaintiff was to pay the debts of the company, including his own salary, and that such stipulation only applied to the debts existing at the date of the Potts contract. While it is true that no such defence was set up in the answer, yet the defendant insisted, against plaintiff’s objection, upon introducing testimony to that effect, which could have been for no other purpose than to show that plaintiff had been provided with means out of which he could and should have paid himself whatever was due on his salary, if anything ; and all that the Circuit Judge said to the jury was, not that such a defence was set up in the answer, but that it was contended by defendant that plaintiff having been furnished with these assets, any claim that he may have had should be considered as paid; and he then went on to construe the' contract, which being in writing it was his province to do, and properly held that the stipulation in that contract only related to debts then existing, and had no reference to any that might afterwards be incurred. As this Potts contract bears date 25th of November, 1887, it manifestly could have no application to the plaintiff’s claim for salary from the 27th day of November, 1887, to the 27th of November, 1888. There is therefore no foundation for the third exception.

5 The sixth, seventh, eighth, and ninth exceptions may be considered together, as they all relate to, what was said to the jury in reference to the action of the executive committee in auditing the salary of the plaintiff. We do not see that we can add anything to what was said to the jury by the Circuit Judge in reference to this matter. The jury were distinctly told that the executive committee had no authority to fix the salary of the president, and we think it was correctly added that according to the proper construction of the resolution adopted by them, and offered in evidence from the minutes, they did not undertake to do so; and furthermore, we do not see how the defendant could have possibly been prejudiced by anything said to them on this subject.

2 The tenth exception imputes error to the Circuit Judge in refusing defendant’s fifth and sixth requests to charge. These-requests called upon the judge to instruct the jury that under the contract with the construction company, by which it assumed the payment of the president’s salary, the plaintiff, if cognizant of such agreement at the time he accepted the office of president, was bound to look to the construction company for his salary, and could not hold the defendant company liable therefor, unless he had given notice to the defendant company at the time he accepted office of his intention to look to the railway company for payment of his salary, or if he acted in such a way as to lead the directors of the railway company to believe that he intended to make no charge against the defendant company, then he cannot now be permitted to make a charge. So much of these requests as relate to the service by plaintiff being gratuitous will be passed over until we come to the eleventh exception, with which it is more properly connected.

As we have already indicated, we do not see how the contract between the defendant company and the construction company, whereby the latter undertook to pay the salary of the president, can affect the question in this case. The plaintiff was no party to that contract, which was made long before the plaintiff was elected president, and though he doubtless knew of that contract, he, as an individual, was in no way bound by its terms, and could not be unless it was shown that he had agreed to look to the construction company alone for his salary, which is not pretended. If he accepted the office of president, either under a special contract as to his salary or under an implied agreement that he was to be paid whatever his services might be reasonably worth, he certainly has a right to recover from the company which employed him, either the amount stipulated for or the amount' which his services were reasonably worth, as the case might be. Surely the fact that his employer had obtained from another an obligation to pay such amount, could not possibly affect the plaintiff’s right to recover from the party who employed him. The utmost effect that contract could have, would be to give the railway company a claim against the construction company for any amount which the former might have to pay its president for his salary, in case of the failure of the latter to pay the same; but it certainly cannot have the effect of relieving the railway company from liability to pay its president’s salary, unless there was some agreement to that effect with the president.

6 The eleventh exception complains that the comments of the Circuit Judge upon defendant’s seventh request were calculated to confuse the jury. That request, together with the latter part of the sixth request just referred to, relate to the question whether plaintiff’s services were gratuitous at the time they were rendered. An examination of the judge’s charge will show that his remarks to the jury upon this subject were free from exception. He did not instruct the jury that there must be “express evidence” that plaintiff intended to serve the defendant company gratuitously, and it does not seem to us that there is anything in the language used which would properly warrant, or even would be likely to lead the jury to, such an inference.

7 The first part of the twelfth exception complains that the Circuit Judge erred in submitting to the jury the question whether the amount of the salary of the president was fixed previous to or during the administration of Gov. ITagood, the predecessor of plaintiff, when there was no evidence to that effect. In the first place, we do not see tha.t any such question was left to the jury, as the judge simply called the attention of the jury to the testimony as to what occurred in reference to the payment of the president’s salary during the administration of Gov. Hagood, which had been relied on by plaintiff as a circumstance tending to show the amount fixed as the salary of that office. And, in the second place, if the judge misstated the testimony to the jury, the remedy was by a motion for a new trial before the Circuit Court, and not by appeal to this court. State v. Jones, 21 S. C., 596.

8 The only remaining question is that raised by the 5th and the latter part of the 12th exception, as to whether the Circuit Judge violated the constitutional provision prohibiting a charge upon the facts. The specifications of the particular portion of the charge in the 5th exception do not show that the judge either expressed or intimated any opinion as to any question of fact which the jury were called upon to determine. There was some testimony tending to show that the salaries of railway presidents were sometimes high, and what was said upon tnis subject was more by way of illustration than as indicating any opinion on the part of the judge. Fitzsimmons v. Guanahani Company, 16 S. C., 192; Rambert v. Railway Co., 31 Id., 309. The specification contained in the latter part of the 12th exception is a sentence extracted from the charge, which when read in its proper connection, as it should be, affords no ground whatever for the complaint made.

The judgment of this' court is, that the judgment of the Circuit Court be affirmed.