Newell v. St. Louis Bolt & Iron Co.
| Decision Date | 05 February 1878 |
| Citation | 5 Mo.App. 253 |
| Parties | WILLIAM B. NEWELL, Respondent, v. ST. LOUIS BOLT AND IRON COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
1. One office of instructions is to define the issues, and to exclude from the jury questions foreign to the case. The giving of an instruction is a declaration by the court that it is relevant to the issues; and where it presents contingencies not in the case, it is erroneous.
2. Where the defendant, by the pleadings, admits the receipt of money, but denies that it was received as a loan, the point in issue on the trial being whether the money received was a loan, it is error to instruct the jury that the burden is on the defendant to show that the money received was not a loan.
3. Where plaintiff alleges that he was hired by defendant as book-keeper for a specified time, and defendant's testimony tends to show that the services alleged to have been rendered as employee were the acts of a partner in his own business, it is error to refuse an instruction which requires the jury to find upon what agreement and in what capacity the services were rendered. While the pleadings and proofs present the two theories of services rendered as employee and acts performed as partner, there can arise no implication of a promise to pay for such services or acts.
APPEAL from St. Louis Circuit Court.
Reversed and remanded.
GEORGE A. MADILL, with T. E. RALSTON, for appellant.
SLAYBACK & HAUESSLER, for respondent: Instructions; what they must contain, and when they will be declared erroneous.-- Woodruff v. Hough, 1 Otto, 596; Haskings v. Railroad Co., 58 Mo. 302; Henschen v. O'Bannon, 56 Mo. 291; Caldwell v. Stephens et al., 57 Mo. 589; Vaulx v. Campbell, 8 Mo. 224; Neale v. McKinstry, 7 Mo. 128; Blackwell v. Baily, 1 Mo. App. 328; Rickey v. Zeppenfeldt, 64 Mo. 277; Miller v. Drake, 62 Mo. 544; Clements v. Moloney, 55 Mo. 353; Williams v. Vanmeter, 8 Mo. 339; Rogers v. McCune, 19 Mo. 557; Loehner v. Insurance Co., 19 Mo. 628; The State v. Taylor, 64 Mo. 358; Moore v. Sanborin, 42 Mo. 499; Sears v. Wall, 49 Mo. 359; Russell v. Insurance Co., 55 Mo. 585; Pond v. Wyman, 15 Mo. 175; Gamache v. Picquignot, 17 Mo. 310; Phillips v. Smoot, 15 Mo. 598; The State v. Floyd, 15 Mo. 349; Bay v. Sullivan, 30 Mo. 191; Chouquette v. Barada, 28 Mo. 491; Morris v. Morris, 28 Mo. 115; Rose v. Spies, 44 Mo. 20; Tate v. Railway Co., 64 Mo. 149; Bowling v. Hax, 55 Mo. 446; Walter v. Cathcart, 18 Mo. 256; The State v. Brown, 64 Mo. 367; Finney v. Allen, 7 Mo. 419; Swearingen v. Orme, 8 Mo. 707; Patterson v. McClanahan, 13 Mo. 507; Carroll v. Paul, 19 Mo. 102; Miles v. Davis, 19 Mo. 408; Buckner v. Jones, 1 Mo. App. 538; German National Bank v. Studley, 1 Mo. App. 260. Appellate courts will not weigh evidence.-- Capelle v. Brainard, 52 Mo. 479; Beattie v. Hill, 60 Mo. 72; Edwards v. Cary, 60 Mo. 572; The State to use v. Bressler, 56 Mo. 350; Thompson v. Russell, 30 Mo. 498; Carver v. Thornhill, 53 Mo. 283; Hay v. Short, 49 Mo. 139. That the verdict is against the weight of evidence is no ground for a reversal. Questions of conflicting evidence are solely for the jury, in civil actions at law.-- Tutt v. Cloney, 62 Mo. 116; Perkins v. Railway Co., 55 Mo. 202; Estell v. Railroad Co., 56 Mo. 282; Douglas v. Orr, 58 Mo. 573; Fulkerson v. Bollinger, 9 Mo. 838; Schuster v. Railroad Co., 60 Mo. 290; McHugh v. Meyer, 61 Mo. 334; Reynolds v. Rogers, 63 Mo. 17; Hill v. Deaver, 7 Mo. 57; Rider v. Springmeyer, 30 Mo. 234; Lockwood v. Insurance Co., 47 Mo. 50; Price v. Evans, 49 Mo. 396; Week v. Senden, 54 Mo. 129; Powell v. Camp, 60 Mo. 569; Kitchen v. Railroad Co., 59 Mo. 514; Moore v. Davis, 51 Mo. 233; Schultz v. Insurance Co., 57 Mo. 331; Tiffin v. Forrester, 8 Mo. 642; Oldham v. Henderson, 4 Mo. 295; Ried v. Insurance Co., 58 Mo. 429; Allen v. Jones, 50 Mo. 205; McKay v. Underwood, 47 Mo. 185; Irvin v. Riddlesburger, 29 Mo. 341; McLean, Admr., v. Bragg, 30 Mo. 262; McCune v. Erfort, 43 Mo. 134; Faugman v. Hersey, 43 Mo. 122; Easley v. Elliott, 43 Mo. 289; Jaccard v. Davis, 43 Mo. 535; Allen's Administrator v. Richmond, 41 Mo. 302; Blumenthal v. Torlina, 40 Mo. 159; Longuemare v. Busby, 56 Mo. 540; Lottman v. Barnett, Morse v. Sherrill, 63 Barb. 21.
The petition in this case contains two counts: The first is to recover $10,005, which, it is averred, was lent to the corporation, by the plaintiff, on June 20, 1874, the loan, on which a payment of $500 for interest is credited, bearing interest, it is alleged, at ten per cent per annum. The second count is to recover for services rendered, as stated, by plaintiff to defendant, as book-keeper, from July 1, 1874, to April 1, 1875, at $200 a month. The answer, after a general denial, contained matter to the following effect: That in June, 1874, plaintiff agreed to take twenty shares in the capital stock of defendant, and to pay for it $19,000; that $10,005 were paid upon the shares, and eleven shares issued to plaintiff; that, by the agreement, the whole of the stock of the company was to be owned by five stockholders, four of whom had taken twenty shares at $20,000 in cash, and the plaintiff agreed to make his shares the same, and pay the balance of $19,000 on or before Oct. 1, 1874; that each of these stockholders was to be a director, and to devote his entire time to the company's business; that in pursuance of this understanding, at about the time the stock was issued to him, plaintiff was elected a director of the company; that he was to draw such sums as might be necessary for his support, which were to be considered as advances on profits, and that thus, and not as interest, the $500 was drawn; that in this way, and not otherwise, he had charge of the books, and performed services, etc. The reply denied the new matter, and pleaded certain facts of evidence.
On the trial, the theory of the plaintiff appeared to be that he had been requested to buy stock in the defendant company; that suggestion was made that he should investigate its affairs, with a view to his so buying; that, accordingly, he entered the service of defendant as its book-keeper, intending, if satisfied, to purchase shares; that the company borrowed of him $10,005; that after so performing services, he was not satisfied with the company's condition or prospects, and so informed the officers; and that he then demanded that the amount loaned should be returned to him. The plaintiff gave evidence tending to show that $200 a month was agreed upon as the salary for his services as book-keeper; that a loan was requested of him by the company, and that he gave to it his check on New York for $10,000, and that of this an entry was made, in his favor, in the cash-book; that nothing was then said to him about taking shares, and that he took no stock in the company at any time; that he never was a director in the corporation; that, if elected such, it was against his consent; that he did not think he was present when so elected, but was not sure; that his recollection was that he had never represented to citizens of St. Louis that he had taken an interest in the defendant company.
The defendant introduced many witnesses, whose voluminous testimony need be given only in brief outline. Its tendency was to show that, as the result of an understanding between the plaintiff and the defendant, the plaintiff put into the company $10,005 in part payment for stock to the amount of $20,000 in the company, which stock the plaintiff was to purchase at ninety-five cents on the dollar; that he was to keep the books, and have charge of the finances of the company, and did so; that for the $10,005 paid by the plaintiff, eleven shares of stock were made out in plaintiff's name and delivered to him; that he was elected cashier, an office created for him, and elected a director of the company, and that he acted and voted as such; that he was repeatedly introduced to strangers as a partner in the company's business, and wrote of himself as such, and spoke of himself as a stockholder in the company; that there was never any agreement to pay him for services, but that, like the other stockholders, he was at liberty to draw $200 a month on personal account; that afterwards, and when he thought the investment a bad one, he claimed that the money he had paid on the stock was a loan, and brought this suit.
On rebuttal, two letters written by the plaintiff being shown to him, and his attention being called to statements in them in which he had alluded to himself as a partner in the defendant company, and the letter-heads in which his name as a proprietor was displayed being put to him, he testified to the effect that his own statements as to the partnership were false; that he was uncertain whether he got these letter-heads printed or not, but did not write out the form for them; that he did not put his name there as proprietor, but allowed it to be so used, and wrote letters upon the blanks himself, knowing he was no partner; that as to the intention with which his name was put there he did not know, but just saw it there and let it go.
The instructions, so far as necessary, are noticed below. The jury found for the plaintiff on both counts. The court below refused to set aside the verdict, and the defendant appealed. At the request of the plaintiff, the following instructions were given:--
“1. If the jury believe from the evidence that the money advanced by plaintiff to defendant, on or about June 20, 1874, was a loan to them for their use, and that the same remains due, they will find for plaintiff in the amount so loaned, with interest from the time they may believe the interest has been paid, on first count.
“The court declares the law to be that no oral agreement on behalf of the plaintiff to take stock in defendant is binding upon him, unless he either agreed in writing so to do, or subscribed for stock, or purchased stock from a former owner of stock, or accepted certificates of...
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