Albers v. Merchants' Exch. of St. Louis

• Citation: 140 Mo. App. 446,120 S.W. 139
• Parties: ALBERS v. MERCHANTS' EXCH. OF ST. LOUIS.
• Decision Date: 08 June 1909
• Court: Court of Appeal of Missouri (US)

120 S.W. 139

140 Mo. App. 446

ALBERS v. MERCHANTS' EXCH. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

June 8, 1909.

1. CONTRACTS (§ 152)—CONSTRUCTION—FORFEITURE.

The meaning of words is never extended beyond their plain meaning for the purpose of working a forfeiture.

2. EXCHANGES (§ 5)—EXPULSION OF MEMBERS—BY-LAWS—CONSTRUCTION.

A proceeding to forfeit the membership rights of a member of a trade exchange for a violation of the by-laws is a penal proceeding, and the by-laws, like penal statutes, should be strictly construed and nothing taken by intendment or implication for the purpose of working a forfeiture.

3. EXCHANGES (§ 4) — BY-LAWS — OBLIGATION AND PURPOSES—"SETTLEMENT."

Where plaintiff, who was a member of a trade exchange, and another member thereof, executed, bought, and sold notes, which provided that the sale was subject to the rules of the exchange, by which plaintiff agreed to deliver wheat on a certain date, and the buyer, on plaintiff's refusal to deliver on that date, without consulting plaintiff, retained a part of the money deposited by him as security for delivery, as damages for plaintiff's breach of contract, on the basis of the value of wheat as fixed by the exchange on the day of delivery, but plaintiff claimed that the price fixed was fictitiously created by the buyer and others by cornering the wheat market, and instituted suits to establish his claim, there was no "settlement" between the parties so as to require plaintiff to surrender the contracts with the buyer under an alleged implied rule of the trade exchange requiring the parties to surrender contracts upon a settlement; that term implying an accounting and adjustment and a liquidation in regard to accounts and involving the idea of mutuality.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Suit by Claus H. Albers against the Merchants' Exchange of St. Louis. From a decree for plaintiff, defendant appeals. Affirmed.

Robert F. Walker, for appellant. Barclay, Shields & Fauntleroy, for respondent.

NORTONI, J.

This is a suit in equity for injunctive relief. Plaintiff recovered, and defendant appeals.

Plaintiff is a commission merchant in the city of St. Louis and president of the C. H. Albers Commission Company. Defendant, Merchants' Exchange, is a nontrading corporation, organized under article 11, c. 12, Rev. St. 1899 (Ann. St. 1906, pp. 1103-1119), in regard to benevolent, religious, scientific, etc., corporations. Its purpose is to promote trade and facilitate business among its members. It appears plaintiff is a member of the Merchants' Exchange, and, as such, enjoys the privileges of trading on the floor of that institution. The Hubbard & Moffitt Commission Company is likewise engaged in the commission business. The president of that concern is Mr. N. L. Moffitt, a commission merchant. He, too, is a member of defendant Merchants' Exchange, and, as such, enjoys the privileges of the floor of that institution for the purpose of trading. In the autumn months of 1903, at different times, plaintiff sold to the Hubbard & Moffitt Commission Company a considerable quantity of No. 2 red winter wheat, to be delivered during the month of December of that year. The sale mentioned was negotiated by the plaintiff, Mr. C. H. Albers, on behalf of his company, and by Mr. N. L. Moffitt, on behalf of the purchaser, the Hubbard & Moffitt Commission Company. In connection with these sales, plaintiff deposited, as security for the performance of the contracts on the part of himself and his company with the Hubbard & Moffitt Company, a sum of money in excess of $20,000, and executed as evidence of such sales, at different dates, several contracts to the Hubbard & Moffitt Company. The contracts referred to were in the following form: "St. Louis, Mo. ____. We have this day sold to (or bought of) and hereby agree to deliver to (or receive from) ____ bushels ____ at ____ cts. per bushel, to be delivered at seller's option during the month of ____ in regular elevators. This contract is subject in all respects to the rules and regulations of the Merchants' Exchange of St. Louis." These contracts were given into the possession of Mr. Moffitt for his company, and were retained by it as evidence of its right to demand delivery of the wheat purchased. At the same time, and in conjunction therewith, Mr. Moffitt executed and delivered to the plaintiff for his company several contracts in like form evincing the undertaking of the Hubbard & Moffitt Company to receive the wheat when tendered in accordance therewith. The matter ran along until December 31, 1903, or the last day for delivery, and plaintiff failed to deliver the wheat theretofore sold to the Hubbard & Moffitt Commission Company. It appears that by competent authority of the Merchants' Exchange, of which both parties were members, the price of No. 2 red winter wheat for delivery on December 31st was ascertained and fixed at 92 cents per bushel. Plaintiff having failed to deliver the wheat referred to, Mr. Moffitt declared the contracts therefor breached and ascertained and determined his damage on account of the breach by calculating the difference between the price at which he purchased the same and the price of 92 cents per bushel fixed by the Merchants' Exchange on December 31, 1903, the day the delivery should have been made. To compensate for the damage thus ascertained, he appropriated a sufficient amount of the plaintiff's funds deposited with his company as margins, or, as otherwise stated, as security for the performance of the contract, to liquidate the damage, and remitted to the plaintiff the balance of those funds, in amount, $1,790.25. This occurred some weeks after December 31st. About this time plaintiff instituted several suits in the circuit court of the city of St. Louis against Messrs. Spencer, Milliken, and others, in which he alleged that the price of 92 cents per bushel for wheat, as fixed by the Merchants' Exchange on December 31, 1903, was fictitious, in that it was brought about through a corner in wheat which had been engineered by those gentlemen and by Mr. N. L. Moffitt and the Hubbard & Moffitt Company, which participated and acted as agents for Spencer and Milliken, and wrongfully participated in cornering the market.

The record is quite indistinct in respect of these suits and the character of relief sought therein. Enough appears, however, to show that plaintiff, instead of acceding to the price of 92 cents per bushel for wheat on December 31, 1903, was continually combating it as fictitious. Some time after these suits were instituted, Mr. Moffitt, for the Hubbard & Moffitt Company, proffered to surrender to the plaintiff the several contracts held by him and his company against plaintiff for the purchase of the wheat, and demanded of the plaintiff that he surrender as well to Mr. Moffitt and the Hubbard & Moffitt Company the several contracts which plaintiff held, requiring the Hubbard & Moffitt Company to receive the wheat if tendered. However, at the time Mr. Moffitt demanded his contracts from plaintiff and proffered to surrender to plaintif...