McSherry v. the Market Corporation

THE COURT.

An action to recover for services rendered and for money loaned and expended by Joseph McSherry, who thereafter assigned his claims to plaintiff.

The court entered judgment for plaintiff, which included an award of $2,000 agreed to be paid the assignor under a written contract, and $550 expended by him. Defendant corporation has appealed from these portions of the judgment. Plaintiff was also awarded judgment for other sums claimed by the assignor, but of those the defendant does not complain.

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The complaint alleged and the court found that on November 10, 1928, defendant, a corporation which had then been organized, assumed the contract mentioned and agreed to pay said sum of $2,000; further, that the sum of $550 was expended by the assignor pursuant to the contract, and an itemized statement thereof presented to the directors of the corporation, who refused to act thereon.

The corporation does not deny that the services were rendered under the contract, but claims that no recovery can be had for the reason there was no allegation or proof that the assignor was a duly licensed real estate broker. It also claims that in the absence of proof that the defendant’s directors approved the expenditures these cannot be recovered.

The $2,000 claim arose out of a written agreement between the assignor and one Weeks. This agreement recited that the two were engaged in organizing a corporation for the purpose of leasing and operating a public market, and that they desired to define their respective interests in the stock of the company; that other than stock which might be sold for the purpose of assisting in financing the corporation and one qualifying share to each director, all-stock issued should be divided between the two parties to the contract as follows: to Weeks or his nominees sixty per cent, and to the assignor forty per cent thereof; further, that conditioned upon the opening of the market the assignor, in addition, should receive for his services to be rendered prior to the organization of the company in securing tenants for the market said sum of $2,000 and his expenses, these sums to be paid by the corporation. '

It is admitted that services were rendered by the assignor under the contract and that the corporation assumed them and agreed to pay therefor, its sole defense being as above stated. When the corporation was organized was not shown nor was it expressly alleged or found when the services under the contract were rendered. It is a fair conclusion, however, from the facts appearing that they were rendered before the corporation came into existence. It also does not appear that any persons other than the two parties to the contract became stockholders in the company except that the contract names three other persons who were to be the organizers of the company and who with