Magee v. Mercantile-Commerce Bank & Trust Co.

• Decision Date: 08 February 1939
• Docket Number: 35502
• Citation: 124 S.W.2d 1121,343 Mo. 1022
• Parties: Andrew L. Magee v. Mercantile-Commerce Bank & Trust Company, Appellant
• Court: Missouri Supreme Court

124 S.W.2d 1121

343 Mo. 1022

Andrew L. Magee v. Mercantile-Commerce Bank & Trust Company, Appellant

No. 35502

Supreme Court of Missouri

February 8, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Reversed.

Thompson Mitchell, Thompson & Young, C. P. Berry and Ronald J. Foulis for appellant.

(1) The trial court erred in refusing to peremptorily instruct the jury in favor of defendant on the cause of action stated in the first count of the plaintiff's amended petition because: (a) The cause of action was barred by the Statute of Limitations. Secs. 862, 1262, R. S. 1929; Boyd v Buchanan, 176 Mo.App. 59; McGrew v. Elkins, 36 S.W.2d 424; St. Louis County ex rel. v. Marvin Planing Mill Co., 58 S.W.2d 771; Lacquement v. Bellamy, 253 S.W. 1073; Cole v. Wabash Ry. Co., 21 Mo.App. 447; Bollman Bros. Co. v. Peake, 96 Mo.App. 257; Ryors v. Prior, 31 Mo.App. 561; St. Charles Savings Bank v. Thompson, 284 Mo. 72; Kauz v. Great Council of the Order of Red Men, 13 Mo.App. 341; Landis v. Saxton, 105 Mo. 491; Beard v. Citizens Bank, 37 S.W.2d 679; Bisesi v. Farm & Home Sav. & Loan Assn., 78 S.W.2d 871; Winne v. Queens Land & Title Co., 166 A.D. 314; Winchester Turnpike Co. v. Wickliffe, 100 Ky. 531, 38 S.W. 867; Piggott v. Denton, 46 S.W.2d 618; Brooks v. Trustee Co., 76 Wash. 589, 136 P. 1152; Bennett v. Thorne, 36 Wash. 253, 78 P. 936; Harris v. Puget Sound Bridge & Dredging Co., 38 P.2d 354; Carstens Packing Co. v. Granger Dist., 295 P. 930; Potter v. Everett, 40 Mo.App. 158; Shearlock v. Ins. Co., 193 Mo.App. 433. (b) Demand for repurchase of the bonds was not made within a reasonable time after the alleged agreement to repurchase was made. Shearlock v. Ins. Co., 193 Mo.App. 433; Potter v. Everett, 40 Mo.App. 158; Bisesi v. Farm & Home Sav. & Loan Assn., 78 S.W.2d 871; Fuchs v. Meyer, 227 N.W. 265; Hoffman v. Killett, 250 Ill.App. 492; Fulmele v. Los Angeles Inv. Co., 51 Cal.App. 417, 196 P. 924; Starkweather v. Gleason, 221 Mass. 552, 109 N.E. 635; Park v. Whitney, 148 Mass. 278, 19 N.E. 161; Odden v. Jamison, 129 Minn. 489, 152 N.W. 871; Spaeth v. Ocean Park Realty Co., 16 Cal.App. 329, 116 P. 981; Roush v. Illinois Oil Co., 180 Ill.App. 346. (2) The trial court erred in giving Instruction 1 for the plaintiff, because said instruction permits recovery although the demand made by plaintiff on defendant to repurchase the bonds was made more than five years after the alleged agreement to repurchase.

James T. Blair, Jr., for respondent.

(1) The trial court rightly refused to give to the jury the instruction in the nature of a demurrer to the evidence. (a) The contemporaneous parol contract to repurchase the bonds was based on a sufficient consideration. Klein v. Johnson, 191 Mo.App. 453; Mulliken v. Haseltine, 160 Mo.App. 9; Pfeiffer v. Mausbach, 178 N.Y.S. 482; Vickrey v. Maier, 129 P. 273; Cowden v. Karshner, 24 F.2d 916; Beverly v. Richards, 238 N.W. 270; Moench v. Hower, 115 N.W. 229; Kincaid v. Overshiner, 171 Ill.App. 37; Heller v. Speier, 230 N.W. 835; Oklahoma Natural Gas Corp. v. Douglas, 39 P.2d 578. (b) The contemporaneous parol contract to repurchase the bonds was enforceable. Klein v. Johnson, 191 Mo.App. 453; California Credit & Collection Corp. v. Brandlin, 243 P. 41; Denver Industrial Corp. v. Kesselring, 8 P.2d 767; Pyskoty v. Sobusiak, 145 A. 58; Hulen v. Stuart, 217 P. 750; Williamson v. Marshall, 200 P. 1058; Reichert v. Mulder, 235 N.W. 680. (c) The contemporaneous parol contract to repurchase the bonds was a continuing one, categoric and unqualified, entitling respondent to demand performance at any time, and, accordingly, the time within which he was entitled to demand performance was not limited to the period fixed by the Statute of Limitations or to what might be considered a reasonable time. Cruse v. Eslinger, 235 S.W. 496; Halsey v. Boomer, 210 N.W. 209; Kincaid v. Overshiner, 171 Ill.App. 37; Grotte v. Rachman, 207 N.W. 204; Jameson v. Jameson, 72 Mo. 640; State ex rel. Commonwealth Trust Co. v. Reynolds, 278 Mo. 695; Mo. Pac. Ry. Co. v. Continental Natl. Bank, 212 Mo. 505; Stone v. St. Louis Union Tr. Co., 183 Mo.App. 261; Arnold v. Sec. Bank of St. Joseph, 285 S.W. 161; Reed v. St. L. & S. F. Railroad Co., 277 Mo. 90. (d) Assuming that it was necessary for respondent to demand a performance of the contemporaneous parol contract to repurchase the bonds within a reasonable time, and such is not the rule in this State, and assuming also that appellant properly interposed a claim that respondent failed to do so as an affirmative defense, which it did not do, the evidence conclusively established as a matter of law that respondent made a demand for performance within a reasonable time. Grace Sec. Corp. v. Roberts, 164 S.W. 700; Vickrey v. Maier, 129 P. 273; Kaplan v. Reid Bros., 285 P. 868; Armstrong v. Orler, 220 Mass. 112; Oaks v. Taylor, 51 N.Y.S. 775; Paulson v. Weeks, 157 P. 590.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action on an oral agreement to repurchase bonds. Plaintiff claimed it was made by defendant as a part of the consideration for his purchase. The case was tried on an amended petition containing five counts. Premature appeals in this case were dismissed. [Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614.] Thereafter, plaintiff dismissed all counts except count one, upon which he had a verdict for $ 15,722.94, and final judgment was entered thereon for plaintiff for that amount. Defendant has appealed.

We adopt plaintiff's statement of the transaction, without use of quotation marks. (Quotation marks show plaintiff's quotations from the record.) Plaintiff Magee had "done business" with defendant since 1900 and had accumulated in its bank a savings account of "about $ 14,000." Magee had "never speculated in bonds." On July 3, 1923, James Donahue, a teller in the savings department of the bank, "approached" Magee with the suggestion that he purchase bonds from the bank, and "advised" Magee "to buy some." Donahue "sent" Magee "over to the bond department." Donahue introduced Magee to one Riley, who "was a securities salesman" for the bank. He informed Riley that Magee "had a pretty sizeable amount" "in the savings account," and Magee wanted a higher rate of interest. Magee told Riley that "he had this money on deposit with our bank." The bank "did a regular bond business -- bought and sold bonds." Mr. Maestre "was manager of the bond department" and Riley "worked under" him. Riley told Magee, "These bonds are just the same as cash. When you want your money back bring these bonds in and we will buy them from you." Magee said to Riley, "Well, that sounds all right, Mr. Riley, but, on second thought, you say you will buy these bonds back -- but what will I get for them?" Riley said, "You come with me down to the bond department and I will have the manager of the bond department explain that to you."

Riley took Magee "down to the bond department," and while Magee "sat outside the rail," Riley went into Maestre's office. After a lapse of "about 5 minutes," Riley brought Maestre to Magee and "introduced him as the manager" saying, "He will explain anything you want to know." Magee said to Maestre, "Mr. Riley here says he will buy these bonds back. What will you pay me for these bonds -- for example I am paying a premium on most of these bonds. Will you buy them back and pay the premium on them?" Maestre said to Magee, "No, I can't say as to that," and produced a book and attempted to explain "about fluctuations in the market." Magee testified, "It was Greek to me," and so he said to Maestre, "I am not interested in that book or anything else. What I am interested in is these bonds and my money invested in them. Will you buy these bonds back at par? . . . I told him I was not interested in the book, but I was interested in the money, as it represented my life's savings, and I had to be careful. I knew a little about bonds having a fluctuating value. I never had any experience prior to these. I understood what fluctuation meant when he said the value would fluctuate; what he was referring to was the premium." Maestre, answering Magee's question whether the bank would buy the bonds back at par said to him, "Yes we will. Any time you bring these bonds in here and you want to sell them we will buy them back at par from you, or any other bonds that you buy here." Riley was present, and "he gave me the nod when Mr. Maestre agreed to buy them back at par any time I chose to sell them." "Mr. Riley said they were just the same as cash and 'any time you want to sell them we will take them back.'" Riley "had not turned the bonds over to me yet when I asked Mr. Maestre that question -- whether he would buy them back. . . . The transaction was not closed. We were right in the middle of the transaction. I had not received the bonds yet." After the promise to repurchase was made, the bonds were immediately delivered to Magee by Riley and Maestre. The conversation occurred, the contract was entered, and the bonds were delivered on July 3, 1923. The amount paid the bank by Magee for the bonds was $ 14,824.28, and the par value was $ 14,000. (Among these were $ 8000 Texas levee bonds which defaulted when the District's levee washed away.)

On May 23, 1928, Magee secured a $ 14,000 90-day loan from the bank and as collateral gave the bank all of the bonds purchased on July 3, 1923, except $ 3000 in road bonds which had been cashed in by him when they fell due, and other bonds purchased from the bank at later dates, the total par value of all of which was $ 16,000. (Magee owned bonds of the total par value of $ 25,000, all of which he had purchased from defendant.) This loan was renewed for three months on August 21, 1928, and...