Opinion by
Mr. Justice Fell,
The plaintiff was elected treasurer of the corporation defendant on June 16, 1891. The corporation made an assignment for the benefit of its creditors on March 7, 1892. An adjustment having been agreed upon with its creditors a reconveyance of the assigned property was made June 6, 1893. The action was to recover salary as treasurer from March 7,1892 to Aug. 8, JL893. A verdict was directed for the amount due after the reconveyance and an instruction given that there could be no recovery for the period between the assignment and the recon"veyance.
The plaintiff’s election was for one year from June 16,1891, and more than three months of the term remained after the assignment was made. The assignment did not release the company from its c.ontract, and if there were duties performed during this period, or if there were none and the plaintiff was ready to perform them, and carry out his contract, he was prima facie entitled to recover.
Page 313
For the balance of the time when the property of the company was in the hands of the assignee the presumption is against the right of the plaintiff to recover. While the corporate existence'' continued the corporate functions as to the conduct of business were suspended. The plaintiff was not re-elected in 1892, but no one was chosen in his place. He could not recover againstp the company for services rendered the stockholders, nor could he recover against the company for services rendered upon a quantum meruit or in the absence of an express agreement: Kilpatrick v. Bridge Co., 49 Pa. 118; Martindale v. WilsonCass Co., 184 Pa. 348. The action too was based wholly upon the agreement to pay his salary as treasurer. On the other ' hand, there being no election of a treasurer in 1892 because of the failure of the board of directors to meet he would hold over. At a stockholders’ meeting held soon after the assignment aii issue of preferred stock was authorized, and the plaintiff as treasurer was directed to use it in the settlement of claims against the company. In pursuance of this direction he effected a settlement with all the creditors and procured a reconveyance of the property, and the company resumed the work for which, it was organized. These services pertained to his office, and if in fact they were rendered by him as treasurer they were evidence of his continuance in office and of the consequent right to recover the salary thereof. This question we think should,, have been submitted to the jury together with the right to recover for the period between the assignment and the expiration of the year for which he was elected on June 16, 1891. The learned judge properly said in ruling upon the admission of testimony that the plaintiff could recover for what he did as treasurer, but the question as to what he did was subsequently withdrawn from the jury. The testimony was not so clear as to justify this. It would have been much clearer and the presentation of the case much more satisfactory if the effort to suppress the facts had been less strenuous and persistent. Perhaps three fourths of the record consists of objections made by counsel, and the witnesses were allowed to play such an unimportant part in the trial that the real question whether the plaintiff was serving the company as treasurer or serving his own interests as a stockholder was left in doubt.
Page 314
The first and second assignments of error are not in compliance with the rules. The third, fourth and fifth assignments are sustained and the judgment is reversed with a venire facias de novo.