Nordgren v. Oldham Rural Telephone Co.

168 N.W. 26, 40 S.D. 460, 1918 S.D. LEXIS 98

• Court: South Dakota Supreme Court
• Decided: June 11, 1918
• Docket: File No. 4201
• Status: Published

Opinion

SMITH, J.

Action to recover an amount alleged to fee due upon a contract for the construction) of a telephone line anid for other work and labor performed 'and moneys expended for the use and benefit of the defendant' corporation. The complaint alleges 'four separate and! distinct causes of action, each embracing different items ¡cif 'debit and credit. The answer, so far as material to this appeal, contains a general 'denial, a plea of the six-year statute of limitations, and allegations to the effect that the plaintiff, as an officer of the defendant, has in bis possession moneys of the corporation unaccounted for, with, a prayer for an accounting. Trial to the court, which made findings of fact and conclusions of law anld entered judgment for $83.16 in favor of plaintiff. Plaintiff appeals. . The assignments cover only alleged errors in receiving in evidence two certain) exhibits, and insufficiency of the evidence to sustain the findings1 anld judgment. The evidence is voluminous, and somewhat conflicting, and covers some 145 pages of tire printed record. A discussion oif the rulings upon the exhibits referred to iwouildi necessarily involve a review of the evidence • and the record, and the assignments present no question's, principias!, or rlu'les of evidence which are not well settled1, and! a review of them' is mot justified' by their importance in this case, especially in view of the conclusions reached upon other grounds.

[1] We have examined tile entire evidence, together with the findings of the trial .court, and, while we are oif the view that the Court erred in finding certain facts, we are 'clearly of the opinion that such, errors were not prejudicial, in that the judgment -award's to. plaintiff an amount in excess of what he 'is entitled to recover under the ¡issues .and the evidence in the record'. The plea for an accounting need not be considered, for the reason that no moneys belonging to the corporation are shown to have -been received by plaintiff except such as were, connected with ■items involved 'in the various causes of action- pleaded. A careful examination of the evidence shows- that -every item of plaintiff’s different causes of action, save one for $18 tent of Becker .telephone ‘from March, 1907, 40 August, 1908, w'as barred by the six-year statute of Mmitelüions, and the trial court should have so 'found.

[2] Apparently the trial court lost sight of tlie fact that 'distinct items pleaded involved foiur distinct causes of action, and made its findings, iiin the fionmi of an account covering all the causes of action. The several statements of claims in the complaint, while not described ias distinct causes cif action, were in fact separate and! complete, .and no objection ito the form of pleading having been ¡tríade by defendant, the trial Ccjurt should have treated them as distinct. One of these causes of action, covered by ¡paragraphs 2, 3, 4, and 5 of the complaint perhaps requires-further consideration. Thi-si cause of action is founded upon a contract for the erection of a telephone line under which plaintiff -agreed to did the ¡work for $170. The contract, however, Contained a provision ¡that, in -case the defendant company, its officers, or stockholders delayed or hindered the -carrying out of ¡the contract, the plaintiff ¡should! recover day wages for himself and his employes-, iwlitih expenses! and damages1 for wioirk done up to that time, at sufch rate per -day as w-as1 then paid for farm labor. 1 The ¡Contract required the company -to- furnish and deliver material on the ground for use in construction work. Plaintiff 'founds his right of recovery in this- action uipioln an -alleged 'breach of ¡this provision of the contract, and1 claims to recover thereunder 'the sum of $379.50, the value df hi® own. labor, together with the value of the labor and1 biclard of his employes. To .sustain this -claim., -plaintiff put in evidence an itemized statement of h'is own labor, .and that of his employes- (with value of their board, the first item oif which was dated Ju-ly 17, 1906, and the last, September 25, 1906, and also put in ¡evidencie his own diary or memorandum, from which- th-i-s -statement -w-as. m-ad-e, the last entry in. said diary being, “September 25, -1906, Finished.1.” This action was begun 00 May x, 1913. The cause of action thus pleaded and proved Wia-s- plainly barred 'by the six-year .statute of limitations.

[3, 4] To toll' the statute as. to .this and his ¡other claims, plaintiff put in, ¡oral evidence -of. a meeting of the board' of directors ¡of the deiendlamt corptolraitiou, at which meeting plaintiff presented! to- tine board 'for allowance ¡the flour distinct groups; of claims sued upon in this action. This -evidence wa-s to show an allowance of these claims fiar payment. This meeting was held on March 6, 1907. Ait the time.this meeting wias held the plaintiff himself was ¡cine of the ¡directors, as was his. brother, tooth of whom appear to. have participated) in this meeting and voted for the allowance of these 'claims. Plaintiff testified!:

“My 'brother, I, .and Gord's (another director), and maybe Giildseth, -wias there. Three constituted a 'quorum. I don’t think Jensen- -voted for ,allowing the bills. * * * I voted! in favor of these bill-s and my brother voted -in favor of them. If there was a tie, Mr. Cords' voted. I do not remember ,if Jensen voted against them. I do not remember if Giildseth voted. We had a secretary’s bolok that was lost, which should hatve contained this meeting.”

Gildset'h testified that he -did not think he voted for any of these bills. Appellant himself was- secretary, whose duty’it was to' beep record of meetings.

Assuming, without deciding, that the 'action of the board of directors in allowing such claims might toll the statute of limitations, the burden of proving a legal -and valid allowance thereof certainly rested upon -appellant. Upon ¡tibe record before us we certainly are not able to say that a qualified -majority of the board; of directors, other than plaintiff, ¡voted in favor of the allowance. On 'the .contrary, we think the evidence tends strongly tb showi that but -three .of -the directors, plaintiff, bis brother, and 'Cords, so voted, and that it required plaintiff’s own vote to allow sluich bills. -In such Case, the action! was void. Ritchie v. People’s Telephone Co., 22 S. D. 598, 119 N. W. 990. This evidence is wholly in-sufficient to toll the statute.

Plaintiff, having -recovered -an. amount in- excess of that to. which he was legally entitled under the issues and evidlen-ce, could not have been 'and was not prejudiced ¡by the errors complained df.

The -order and judgment of the trial -court are tíierefiore affirmed).