Bright v. Metairie Cemetery Ass'n

On Application eor Behearingk

Poché, J.

Plaintiff urges his application for a rehearing of this *62cause with great earnestness, and supports it in a very able brief, which we have read, with care and interest.

We think that he misapprehends the reasons which underlie our opinion, and amply justify our decree; for he complains of the injustice of our refusal to allow him to prove the value of his services under the agreement which he alleges; and he quotes numerous authorities in support of the doctrine that a party declaring on a special contract, with or without the allegation of a quantum meruit, can and must be allowed to prove the value of the services rendered, of the work done, or of the goods sold and delivered.

We have examined the authorities on which he mainly relies, and fully indorse the doctrine therein demonstrated. But we fail to see their application to this case. In all the cases quoted, the main contract, either of employment or sale, was proved, as alleged, and the only difficulty arose as to the price or amount of compensation, in proof of which evidence was allowed to prove a quantum meruit.

In this case plaintiff declares that he was employed by the defendant corporation to defend a suit, and that his fee was determined at one third of the amount sued for in case of complete success, or one third of the amount saved in case of partial success.

This averment asserts a special contract, containing two distinct elements; first, an employment, and second, the amount of compensation of the services to be rendered.

Defendant’s general denial puts at issue both the propositions, which are essential to plaintiff’s recovery.

To succeed, he must first prove that he was retained or employed as alleged, and in the next place, that this compensation was agreed upon as alleged, or in default of such proof, that his services were worth the amount claimed therefor.

But before proving his contract of employment as alleged, plaintiff attempted to prove the value of his services under the quantum meruit. To this defendant objected, and we maintained those objections. We are clear that in such a ruling we contravene no principle of law, justice or equity, and that we are supported by the very authorities quoted against us by plaintiff in his brief for rehearing. In. support of his contract of employment, plaintiff introduces evidence showing his retainer by C. T, Howard, president of the association, and to this kind of evidence defendant urges objections which are insurmountable.

We cannot sanction the doctrine that the powers of a corporation which are specially entrusted, under the charter, to a board of directors, can be exercised or usurped by the president or any other officer of the corporation.

The record .utterly fails, to' show any action whatever of the board *63of directors touching or affecting in any manner the contract sued upon by plaintiff, or any knowledge in said board of plaintiff’s appearance in court in the drainage tax suit in behalf, or as counsel, of the corporation.

In rejecting the evidence offered by plaintiff, to show the value of Ms services under the contract alleged by Mm, we desire to be distinctly understood as holding, that had plaintiff proved, by legal evidence, that he had been employed as alleged by the defendant, through or; by the authority óf its board of directors, the only power which could bind the corporation in such a contract, and if, after such proof, he had failed to prove the stipulation for his compensation, as" alleged, it would then have been competent in Mm to prove the-value of Ms services.

But in the absence of proof of any contract of employment by .the defendant corporation, acting in the mode pointed out by its.charter, the door must be closed against any and all evidence of the'value of services rendered without authority from the board.

We, therefore, conclude that our decree must remain unaltered, and the rehearing applied for is, therefore, refused.