Lucas Circuit Court.

damages, the statute provides that the owner shall be liable, and his property, to wit: the boat itself.

But as I have said, the question is made whether the word person as used in section 863, is sufficiently broad to enable the commissioners to maintain an action against the boat by name, under section 5880. Section 5880 is found in what is commonly known as the "code," in part 3, title 1, of division 1.

Part three commences with section 4947, and goes on down to and includes section C793. Section 5880 is bound in a chapter entitled "Special Remedies."

Section 4947, provides that

"In the interpretation of Part Third, unless the context shows that another sense was extended, the word person includes a private corporation; 'writing' includes printing; 'oath' includes affirmation, of unsound mind' includes every species of mental deficiency or derangement; 'bond' includes an undertaking; 'and' may be read 'or,' and 'or' read 'and,' if the sense requires it; words in the present include a future tense, and in the masculine gender include the feminine and neuter genders; and words in the plural include the singular, and in the singular include the plural number; but this enumeration shall not be construed tequire a strict construction of other general words in this part." Section 4948 provides

The provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object, aud assist the parties in obtaining justice; and the rule of the common law, that statutes in derogation thereof must be strictly construed, has no application to this part; but this section shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement, or of a penai nature.

In discussing these provisions of the statute, the supreme court in Springfield v Walker, 42 O. S. 543, held that the word "persons" as used in section 5601 R. S. included a municipal Corporation. That section reads as follows:

"All persons who have any controversy, except when the possession or title of real estate may come in question, may submit such controversy to the arbitrament or umpirage of any person or persons, to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in the state."

The question that arose was, whether a municipal corporation such as was the city of Springfield, might take advantage of that statute and enter into an arbitration agreement with a bond, and it was contended that the word "persons" would not include a municipal corporation; but the court held that it would. They say:

"It is claimed that while the word 'person' may include public corporations, yet the 'persons' who may have the benefits of an arbitration, are limited by section 4947 to private corporation, and that a municipal corporation is excluded by the use of the word "persons" and the interpretation given to that word by section 4947, which provides, 'In the interpretation of part three of this revision, unless the context shows that another sense was intended, the word 'person' includes a private corporation: 2, etc.; and thus by implication the word 'person' excludes al: public corporations." But see section 4948 which I have just read; and having read that, the court held under the provisions of that statute,

Dalton v. Electric Light Co.

that the term "persons" included municipal corporations as well as private corporations.

We think after a very full discussion of this matter, that we are fairly within the meaning and spirit of the rule that requires us to make a construction that shall enable the parties to have a remedy for the injuries which they have received, we hold, as we do hold, that the word "person" in section 863 is broad enough to enable the commissioners of the county to bring suit against the boat by name under section 5880 for tee injuries complained of in this action.

There was another question discussed here, as to whether there should be a keeper of the bridge on it at night. There was in fact a person appointed by the county commissioners who had general charge of the bridge, to look after it and keep it in repair. The contention on the part of the plaintiff in error is that he was in the nature of a bridge tender, and that it was his duty to be present at all times, and when a boat was abcu to pass that bridge, to have opened it. We find nothing in the record to show that there was any rule requiring that to be done. It seems that the board of public works, in giving their consent to have the bridge thrown across the canal, made a regulation that there should be a man appointed generally to look after the bridge and keep it in repair; but that seemed to be the extent and limit of his duty. The boat was going through in the night, and the bridge tender was absent from the bridge. There was no principle of law requiring him to be present. The bridge was a self acting bridge, and could be opened by pushing against it, and it was the intention that it should be opened in that way.

We are of the opinion that there is no error in this record, and the judgment of the court of common pleas will therefore be affirmed. Reasonable cause will be certified for filing the petition in error.

C. S. Curtis, Attorney for Plaintiff in Error.

J. A. Barber, Prosecuting Attorney, for Defendants in Error.

CORFORATIONS.

[Hamilton Circuit Court, February 11, 1897.]

Cox, Swing and Smith JJ.

JAMES DALTON . THE BRUSH ELECTRIC LIGHT CO. COMPENSATION OF A DIRECTOR OF A CORPORATION WHO ACTS AS ITS TREASURER. Where a person, acting as a director in a corporation, afterward elected as its treasurer, and while thus cerving he has no express contract with the company at the time of his election, that he was to be paid for his services; such facts would not preclude him from recovering for the fair and reasonable value of his services, if they were valuable and were rendered under such circumstances as Lhowed that be was to be compensated therefor.

HEARD ON ERROR.

SMITH J.

The plaintiff in error seeks the reversal of the judgment rendered against him by the superior court of Cincinnati, and the principal ground urged for the reversai is, that the trial judge after the testimony on both sides was fully heard, charged the jury that the plaintiff on the evidence was not entitled to recover, and directed them to return a verdict for

Hamilton Circuit Court.

the defendant. He also declined to give certain special instructions asked for by plaintiff's counsel. Plaintiff excepted to the instructions as given and refused, and a verdict having been rendered by the jury, as directed by the court, a motion for a new trial was made on these grounds, and was overruled by the court, and exceptions taken, and a bill of exceptions was allowed, setting out what the evidence on the part of the plaintiff tended to prove, as well as that on the part of the defendant; the charges given and refused and the exeptions thereto. The petition of the plaintiff avers that the defendant company is a corporation, doing business in this state and city, and that on March 20, 1890, he was duly elected treasurer of said company by the board of directors thereof, and that he accepted, and immediately entered upon the discharge of its duties, and so continued until August 15, 1890. devoting his time and services in the preformance of its duties, from April 1, 1890, to August 15, 1890, continuously, for which the defendant company became bound to pay to him a reasonable compensation for his servises, which services are of the value of $200 per month; that the company has not paid him any compensation therefor; and the whole value thereof of $900, with intérest from August 15, 1890, is due and unpaid, and he asks judgment therefor.

The answer admits that it is a corporation, and that on April 1, 1890, the plaintiff was duly elected treasurer of said company, and denies each and every other allegation of the petition.

The bill of exceptions shows that evidence was offered tending to show, that at the request of the president of the defendant company, the plaintiff accepted a certificate for one share of the capital stock of the company; that in receipt thereof, he executed in blank, a transfer and power of attorney upon the back thereof and returned it to the president of the company, from whom he had received it, never having in fact any beneficial interest or ownership in the said stock, and was not otherwise interested in said company; and at the same time, March 20, 1890, he was elected by the board of directors of the company as a director therein, and on the same day was elected to fill the office of treasurer of said company; that he accepted the same and continued in said office until August 15, 1890, and that he devoted his attention daily to the duties of his office as treasurer, examined accounts, took charge of and deposited monies, executed checks, conferred with the creditors and with the president of the company in reference to corporate indebtedness, and spent the necessary time each day at the office of the company for the transaction of his official duties.

That he called the attention of the president to the matter of fixing his compensation several times and was informed that it would be attended to, but that it never was. Plaintiff also offered in evidence article 10 of the constitution of the company defining the duties of the treasurer of the company and which duties the evidence tended to show had been performed by him, and offered article 4 of the by-laws of the company, which provides that the board of directors shall fix ali salaries, and further offered proof tending to show that no salary was or had been fixed by the board for the office of treasurer at the time he entered upon the office, or subsequently during his term, and that no agreement had ever been made as to the amount of salary that should be paid to the plaintiff; and further that his resignation as treasurer was accepted about September 1, 1890, he, in consequence of sickness, having ceased to perform its duties from and after August 15, 1890, and that on

Dalton v Electric Light Co.

August 15, 1890, he forwarded to the company, through its acting president, a bill for said services from April 1, to August 15, 1800, at the rate o: 200 per month amounting to $900, which bill the board declined to pay. He further offered evidence tending to how that his said services so rendered were of the value of from $150 to $250 per month.

The defendant then offered evidence tending to show that the plaintiff as treasurer did not render the services claimed and that they were not of the value claimed by him. That the provisions of the constituticn and by-laws referred to were in force at the time of his election and during his term and that no salary for the treasurer had been fixed, and that the plaintiff had not called the attention of the acting president to the fixing of the treasurer's salary.

At the conclusion of the evidence the defendant company moved the court to instruct the jury to return a verdict for the defendant, which he did refusing to give special charges asked by plaintiff's counsel, and in accordance with the instruction, the jury returned a verdict for defendant. Was this action of the court directing a verdict for the defendant right?

It must be conceded we think, that if Mr. Dalton had not been a director of this company at the time of his election to the office of treas urer thereof, and while he held the same, that on the production of is evidence tending to prove his election as treasurer, that he had no suostantial interest in the defendant company and that as such he rendered services worth from $150 to $250 per month and that on several occasions, while rendering the services, he called the attention of the president to the matter of fixing his compensation, and was imformed that it would be attended to, he was entitled to have the judgment of the jury on the question whether on the evidence he had shown a right to recover, and if so how much that is, whether in their opinion on the evidence submitted, the services were rendered by the plaintiff gratuitously, and without any expectation on his part that he was to be compensated therefor, or whether the defendant, under all the circumstances shown did suppose and had reason to so think that they were gratuitously rendered. In this case here certainly was evidence tending to show that the services were rendered at the request of the company, and with its full knowledge, and that they were valuable and that the plaintiff expected to be paid therefor. And we think it must be conceded that they were of that character that the jury might properly have found are usuallypaid for as well as those rendered by a lawyer or other professional man, or by a la orer in the ld or shop.

Does the fact that the person elected treasurer was at the time and during his term of cffice, a member of the board of directors, as a matter of law absolve the defendant company from any liability to pay the reasonable value of his services? If so, the ruling of the court and the direction given to the jury were right, and the judgment should be affirmed, but if this is not the case in our judgment the trial court erred, for then The proper course would have been to submit the matters in issue to the jury, with appropiate instructions.

It must be admitted that the adjudications on this point are not harmonious, but are in direct conflict. For instance it is held in the case of Bilbatrich v. Bridge Co., 49 Pa., St., 1.8, "that corporations are not liable La quantum meruit for services performed by their officers. There must be an express contract for compensation or there can be no recovery.” And in Holden v. R. R. Co., 71 I!!., 156, it is held, "that where a director

Hamilton Circuit Court.

of a railway company, is appointed treasurer, and no provision at the time is made for his compensation, he will have no right to claim pay for the same, and the subsequent allowance of a claim in his favor, will not entitle him to recover." And in 118 N. Y., 629 while the syllabus of the case simply is, that if a stockholder of a corporation becomes an officer thereof assumes the duty of the office and performs them, without any agreement or provision for compensation, the presumption, in view of his relation and interest, may properly arise that he intends to perform the services gratuitously, and that the evidence showed in that case that he did so, yet in t he opinion of the judge announcing the decision, stronger language, bearing on the question before us, is used. Judge Bradley says, "It is well se tled that a director of a corporation is not entitled to pay for services performed by him as such, without the aid of a pre-existing provision, expressly giving the right to it. They are the trustees of the stockholders, and as such have the management of the corporate affairs. And to permit them to assert claims for services performed, and then support them by resolution, would enable the directors to unduly appropriate the funds of the corporate enterprise. It would clearly be contrary to sound policy."

On the other hand it is stated in Thompson on Corporations, section 4704, that "such offices as that of secretary, treasurer and general manageing agent, are merely ministerial offices. Their incumbants do not stand on the same footing as directors, nor even as the presidert, in respect of their right to compensation. It is not the rule, as in the case of a director, that the law does not imply a promise to pay for such services. On the contrary, while it cannot be said that the law under all circumstances will imply such a promise, it may be affirmed on authority that it is not necessary in order for such an officer to recover a reasonable compensation for his services, that there should have been an express agreement that he should be paid for them."

It is true that the case cited to sustain this doctrine, is that of Smith v. Long Island R. R. Co., 102 N. Y., 190, in which case the plaintiff who sued to recover for services as secretary was not a director of the company, and in this respect was different from the case at bar. But it is difficult to see why the mere fact that he was a director should of itself operate to prevent him from recovering the reasonable value of his services as treasurer, if the other requisites were shown-that is that they were rendered under an implied contract that he was to be paid therefor. In Beach on Corporations, Sec. 235, it is said: “It is not customary to compensate directors for services rendered by them to the company in the regular course of their duty, and they cannot recover therefor, except upon some express agreement entered into between them and the company before the rendition of the services or under a previously existing charter or by-law. But for services beyond the scope of their official duty directors, like other persons, may demand quantum meruit compensation."

Our statute, Sec. 3252, provides that a corporation by its regulations may provide for, "4. The duties and compensation of officers," and in 42 O. S. 579 the court held that associations organized under Sec. 3630, which contains no special provision as to compensation of officers, "that the trustees unless specially invested with the additional capacity and authority of officers or agents, are limited in their claims to compensation to such sums as will reasonably compensate them for the time and expense in going to, attending, and returning from their official meetings, and for their services while in session."