The opinion of the court was delivered by
Redfield, Ch. J.The services of the plaintiff as a member of the executive committee were clearly such, so far as this report shows, as he could only have performed as director. That was, at most, a sub-division or particular department of the office of director, and one which none biit a director could have perfomed. It does not appear in this case as it did in that of Henry v. the same defendant, that this plaintiff acted as construction agent or in any other capacity out of the strict line of his office of director and member of the executive committee, which we regard as of the same character. He was then, upon the very ground of the decision in Henry v. R. & B. R. Company, entitled only to pay as director under the resolution. This is the view the plaintiff evidently took of the question at the time, for he informed the president of the company that he could not continue to act as member of the executive committee at the compensation fixed by the resolution, and the president assured him he should receive a reasonable compensation. But this he evidently had no power to do without the concurrence of the board of directors and in express contravention of this unrescinded resolution. We think, therefore, that the plaintiff was only entitled to recover in regard to these services the amount stated in the third alternative.
II. The claim for commission for selling the bonds of the company while he was director, we think the plaintiff is not entitled to recover. He supposed from conversation with the directors that it was their understanding that a commission should be allowed to all the directors. But it seems they had no such understanding. *225And there is nothing in the case to show that the plaintiff was justified in making any such inference. And, if not, he cannot claim any advantage on the ground of any understanding on his part to which the company gave no countenance. And, aside from any special contract or mutual understanding, the case is the same as the other portion of the claim, the special services of a director, and controlled by the resolution. There is no more ground to imply a contract for a commission than to imply a contract for extra compensation in any other part of the case.
And we understand from the report that the plaintiff’s time and expenses have been allowed for this very service. The form of expression is “ that for the time and expenses of the plaintiff in negotiating said bonds, he has charged in his account,” and we see nothing to raise any doubt that this portion of the account has been allowed. If not it should have been, and it was the plaintiff’s fault not to urge it in the proper form and have it so presented in the report, that it could be known that it was not allowed. We make no question it was allowed.
' III. In regard to the offset it is no doubt true that the specification was probably too general, and if objected to, at the time of filing, on that ground should have been made more specific. But in other respects it covered the claim. There was no variance. The real objection is that it was not, in the technical sense, a sufficiently specific bill of the particulars of the defendants’ claim. But this is matter of practice merely and no ground of error. It is matter of discretion, like the rules of practice in the county court, so far as its particularity is concerned, certainly.
Judgment reversed, and judgment for the defendants, allowing the plaintiff the third allowance in the report, and interest from the date of the report.