Wolff v. Campbell

• Decision Date: 23 May 1892
• Citation: 19 S.W. 622,110 Mo. 114
• Parties: Wolff, Administratrix, v. Campbell, Appellant
• Court: Missouri Supreme Court

19 S.W. 622

110 Mo. 114

Wolff, Administratrix, v. Campbell, Appellant

Supreme Court of Missouri, First Division

May 23, 1892

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

John H Overall and Silver & Brown for appellant.

(1) The trial court committed error in sustaining motion of plaintiff to strike out parts of answer. Where a trade (such as brokers) has been long established, its customs become known to the law, and are judicially taken notice of as a matter of law. Blackburn on Contracts of Sale [2 Eng. Ed.] p. 59. "Parties who contract on a subject-matter, concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary." Robinson v. United States, 13 Wall 363; Fitzsimmons v. Brothers, 81 Mo. 37. (2) The court erred in directing a peremptory verdict for plaintiff. Bryan v. Wear, 4 Mo. 106; Vaulx v. Campbell, 8 Mo. 224; Gregory v. Chambers, 78 Mo. 294; Hemelreich v. Carlos, 24 Mo.App. 264; Const. 1875, art. 2, sec. 28; Com. v. Peter, 10 Metc. (Mass.) 262; Huffman v. State, 29 Ala. 40; Proffatt on Jury Trials, sec. 353. (3) The court should have given defendant's instruction, numbered 1, in the nature of a demurrer to the evidence. Trask, having purchased the note from defendant Campbell, stands in privity with him, and Trask's judgment against plaintiff (which was in evidence) protects defendant Campbell in this suit. (4) The court also erred in refusing to give instructions 2 and 3 as asked by defendant. They embodied elementary principles of law, and had support in the evidence. Authorities, passim. (5) The fourth instruction should have been given as asked by defendant. Story on Agency [9 Ed.] secs. 28, 106; Graham v. Fitch & Co., 8 Bush (Ky.) 12; Beebe v. Robert, 12 Wend. 413; S. C., 27 Am. Dec. 132.

Leverett Bell for respondent.

(1) The circuit court below committed no error in striking out parts of the answer. The allegations so stricken out had no application to the facts of the case, and constituted no defense to the action. (2) The circuit court below committed no error in directing a verdict for the plaintiff. An instruction to find for the plaintiff is proper when there is no evidence to support the defense. Klausman v. Schoulan, 32 Mo.App. 357. It is not error to instruct a jury directly upon the legal effect of facts which are admitted, or which are so clearly proven without countervailing testimony as to be beyond dispute. Slayback v. Gerckhardt, 1 Mo.App. 333; Hedgepeth v. Robertson, 18 Tex. 871; Oscanyon v. Arms Co., 103 U.S. 261. As it is clear upon the law and the facts that the judgment below was for the right party, it will not be reversed. Fairbanks v. Long, 91 Mo. 628; Fortune v. Fife, 105 Mo. 433. (3) The circuit court below committed no error in refusing defendant's instructions 2, 3 and 4.

OPINION

Black, J.

Marcus A. Wolff brought this suit against James Campbell to recover $ 2,500 and interest. The facts, which are not disputed, are:

The plaintiff is a real-estate agent, and the defendant a dealer and broker in notes and other securities. On the twentieth of October, 1887, defendant called at plaintiff's office and offered to sell twenty-five shares of stock of the Fifth National Bank of St. Louis. After some negotiations the plaintiff agreed to take the stock at par and give his note therefor for $ 2,500 due at ninety days, the note to be secured by the stock. No particular shares were mentioned, nor did defendant state that he was acting as broker for any other person.

On the thirty-first of October, 1887, the defendant sent a messenger boy to the plaintiff's office with a note. The plaintiff at that time signed the note thereby promising to pay to the defendant or order the sum of $ 2,500 in ninety days with interest from date. At the same time plaintiff executed a writing to defendant pledging the shares of stock to defendant as collateral security for the note. There was also delivered to the plaintiff at the same time a receipt signed by the defendant whereby he acknowledged that he held twenty-five shares of stock to be delivered to plaintiff on payment of the note. The plaintiff retained the receipt and delivered to the messenger boy the note and agreement pledging the stock. No certificates were then produced or attached to the note. Subsequent events disclosed the fact that the defendant did not then own or have the stock in his possession, nor did he disclose the fact that he had no stock to the plaintiff.

The bank failed in seven or eight days after the date of the note, and the stock then became worthless. A few days before the note matured, to-wit, on the twenty-sixth of January, 1888, the defendant borrowed ten shares of stock from one person and fifteen from another, giving them his receipts therefor, and stating therein that the stock was "to be returned on demand." He then attached the certificates for the stock thus borrowed to the note, and sold the note to a Mr. Trask for a valuable consideration. Trask sued plaintiff on the note and recovered judgment which plaintiff paid, and then commenced this suit to recover back the money so paid on the judgment.

The plaintiff avers in his petition that defendant represented that he held twenty-five shares of stock and could and would deliver the same to plaintiff in consideration of the latter's note; that relying upon such representations he accepted the offer and was thereby induced to execute to defendant his note and the writing pledging the stock, and to accept the defendant's receipt for the stock as held as collateral security for the note; that such representations were false and fraudulent; and that the defendant had and held no stock. The answer of the defendant admits the sale of the stock and the execution of the note and other papers, but denies that any representations made by him were false. He then avers that he was a banker and broker engaged in buying and selling bonds and other securities for his customers; that pursuant to a custom, well established and known to the plaintiff, he uniformly sold and purchased in his own name, without disclosing the name of the person for whom he acted; that he sold the stock to plaintiff in accordance with that custom, to be delivered to plaintiff on payment of the note; that his customer, for whom he sold the stock referred to, accepted the terms of the sale, whereby, according to the custom, defendant became personally liable for the performance of the contract; and that he was ready and willing and offered to deliver the stock according to the contract.

On motion of the plaintiff, the court struck out the averments of the answer concerning the alleged custom, to which ruling the defendant excepted. Plaintiff denied the other averments of the answer setting up new matter.

Plaintiff produced considerable evidence including the deposition of the defendant. This evidence discloses the facts before stated, most of which were admitted by the pleadings. The only real issue in the case was as to the alleged false representations. As bearing on this issue the plaintiff testified that defendant came to his office and said he had twenty-five shares of stock of the Fifth National Bank that he would sell; that after some negotiations he agreed to buy the stock on the terms before stated; that defendant said, "I will keep the stock as collateral to the note," and plaintiff replied "all right."

Defendant in his deposition read in evidence by the plaintiff says he told plaintiff he had twenty-five shares of stock for sale that he sold it to plaintiff on ninety days' time with the stock as collateral security to the note. He states further that as soon as the transaction was closed he informed his customer, who declined to carry out the...