Ghio v. Beard

• Decision Date: 12 July 1881
• Citation: 11 Mo.App. 21
• Parties: CHRISTOPHER A. GHIO, Respondent, v. ELEAZER J. BEARD, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 21

CHRISTOPHER A. GHIO, Respondent,

v.ELEAZER J. BEARD, Appellant.

St. Louis Court of Appeals, Missouri.

Jul. 12, 1881.

1. The facts in this case are substantially as in Keane v. Beard, 11 Mo.App. 10, and are held to warrant a recovery.

2. A contract of subscription to the capital stock of a corporation is a several contract between the subscriber and the corporation, and in a suit to recover back the money paid thereunder, for failure of consideration, the other subscribers need not be joined.

3. Purely technical errors committed on the trial are not sufficient cause for a reversal of a judgment which is manifestly for the right party.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

A. J. P. GARESCHE, for the appellant.

GIVEN CAMPBELL, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This case grows out of the same subject-matter as the case of Keane v. Beard, 11 Mo.App. 10. The plaintiff was one of the adventurers who advanced money to Beard to be used by the latter in purchasing the notes held by the Boatman's Savings Bank, which were secured by a deed of trust upon the leasehold property formerly owned by the Guardian Building Company. The amount advanced by the plaintiff was $2,000, and he has recovered a judgment for this amount with interest; from which the defendant appeals.

In their pleadings in this case, as compared with those in the former case, counsel for the plaintiff and the defendant appear to have changed positions somewhat. In that case, it will be remembered, the plaintiff's position was that the money which he advanced was advanced upon an agreement that a corporation was to be formed with a stock of about $40,000, of which the defendant was to take about three-fourths; that the idea had been abandoned, and that the defendant refused to carry out his agreement to form a corporation, or to refund the plaintiff's money. The defendant's answer, in effect, denied that there was an agreement to form a corporation, but admitted that he had received the advance of money from the plaintiff upon an agreement to use it in purchasing the notes in question and to give the plaintiff an interest in the notes; and then set up that he had foreclosed the deed of trust and taken the title in his own name for the purpose of protecting the interest of the parties who had advanced money to assist in purchasing the notes, and that he was entitled so to hold the property and to appropriate the profits, until he should get back what he had advanced for the purchase of it.

On the other hand, the plaintiff in this case simply states that he advanced $2,000 to the defendant to be used by the latter in purchasing the notes in question, upon an agreement that the plaintiff was to have an interest in the notes when purchased equal to the extent of his money so advanced, and upon no other consideration. It then recites that the defendant did purchase the notes in question; caused the deed of trust to be foreclosed; bid in the property and acquired title thereto in his own name, and has ever since kept it for his own use, refusing to account to the plaintiff, or to refund the sum so advanced, in violation of the agreement. The answer admits the payment to the defendant of the sum of $2,000 for the purchase of the notes in question; that the defendant did purchase said notes, did foreclose the deed of trust, and took title in his own name, and has ever since collected the rents, and denies that the plaintiff is entitled to receive anything from the defendant until the defendant has been paid the amount which he advanced towards acquiring the property in question. It denies that the advance was made to the defendant upon the agreement stated in the petition; but alleges that it was made under, and in pursuance of the agreement embodied in the contract of subscription to the stock of the “Washington Avenue Building Association,” which is set out at length in the opinion in Keane v. Beard ( supra), and which the defendant sets out in full in his answer. But the defendant further alleges that “subsequent to said subscriptions, but before the payment of any one of them, he purchased said notes and mortgage, and subsequently, the parties being unable and unwilling to make up the capital stock of said corporation, the idea of a corporation was abandoned, and none has ever since been...