A. B. Collins & Co. v. Quentin

• Decision Date: 21 May 1934
• Docket Number: No. 17780.,17780.
• Citation: 71 S.W.2d 758
• Court: Missouri Court of Appeals
• Parties: A. B. COLLINS & CO., Inc., v. QUENTIN.

71 S.W.2d 758

A. B. COLLINS & CO., Inc., v. QUENTIN.

No. 17780.

Kansas City Court of Appeals. Missouri.

May 21, 1934.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Reports."

Action by A. B. Collins & Co., Inc., against Blanche L. Quentin. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Nelson E. Johnson, of Kansas City, for appellant.

Jos. A. Guthrie and Thomas P. Fenlon, both of Kansas City, for respondent.

SHAIN, Presiding Judge.

A. B. Collins & Co., a corporation, plaintiff below and appellant herein, is engaged in Kansas City, Jackson county, Mo., in a commission and brokerage business in corporate stocks.

The plaintiff alleged that on September 4, 1930, Blanche L. Quentin, defendant below and respondent herein, executed an order of purchase, to the plaintiff corporation, in words and figures as follows:

"Name Blanche L. Quentin. Date Sept. 4, 1930.

"To A. B. Collins & Co., Inc., Federal Reserve

Bank Bldg., Kansas City, Mo.

"I hereby subscribe for 200 (shares) (Par value) Metal and Mining Shares at $11¾ per share $100 par value and accrued Dividends $____. Interest $____. $100.00 Cash, Balance Sept. 6-30.

"Subscriber's Signature. Blanche L. Quentin,

"336 Rochambeau Apt. Kansas City, Mo.

"Company Representative: James D. Reynard.

"(Note: Make all checks payable to the Company.)"

The plaintiff presents that pursuant to the above it went upon the market and for and on behalf of defendant purchased the stock designated at the price of $2,350, that it secured for the defendant two certificates of stock for 100 shares each, and that on the 20th day of September, 1930, tendered the stock to the defendant and demanded the $2,250 balance due on the purchase price.

The evidence discloses that the stock was issued in the name of defendant and conformed to the agreement of purchase. The defendant refused to accept the stock and refused to pay for the same, and in this suit the plaintiff seeks to recover for the balance of the purchase price and tenders the stock on payment for same.

The defendant pleads to plaintiff's petition by answer and counterclaim. The incorporation of plaintiff is admitted, and defendant admits that she signed the subscription agreement, but makes general denial to all other matters pleaded by plaintiff.

Defendant, further answering, pleads failure of consideration, and denies that, pursuant to any agreement with her, plaintiff purchased for her the said 200 shares of stock, and denies that defendant on her behalf paid $2,350 or any other sum for said stock.

Defendant, further answering, pleads fraud, and avers that plaintiff wrongfully and fraudulently represented to her that she would receive large dividends from the said Metal & Mining Shares, Inc.; that she would be able in short time to sell same at large profit, and that plaintiff would refund to her any sum of money advanced by her and would cancel any contract she might enter into in respect thereto; also that, if defendant would sign subscription agreement and pay the $100 and thereafter, in a reasonable time, find that she could not make financial arrangements, she could notify plaintiff and plaintiff would return to her the $100 advanced and cancel the contract. The usual allegations of falsity of statements made, reasons for belief and reliance, actual belief and reliance and signing as a consequence are duly pleaded, and defendant further alleges that the stock was practically worthless.

It appears that the defendant had purchased other stock of the Metal & Mining Shares, Inc.; that there had been sent to her and received by her a check for dividends $120 in amount; that said dividends included dividend on the stock she had before purchased but also on the stock that had been issued in her name under the transaction herein involved.

Defendant avers that on or about May 9, 1932, when she first learned that the check sent her included $60 dividends on the stock herein in issue, she tendered the $60 back to plaintiff together with interest thereon, and that plaintiff refused to receive same. Based upon above allegations of defense, defendant asked to be discharged with her costs.

Further answering, by way of counterclaim, defendant asked return of the $100 advance payment. This plea was based on the alleged promise of plaintiff to return same to her on her request for cancellation of the subscription agreement.

In reply, plaintiff denies each and every allegation in defendant's answer and counterclaim, and further pleaded that the defendant, having received and retained dividends upon the stock in issue, is thereby estopped from setting up cause of action attempted to be alleged in her counterclaim.

Trial was before a jury, and verdict was for defendant upon the petition and in favor of the defendant on her counterclaim. Judgment was entered to conform to the verdict of the jury, and the plaintiff has appealed.

The reviewable assignments of error are found under the head of "Points and Authorities" in plaintiff's brief, they are as follows:

"I. The court erred in refusing Instruction I in the nature of a peremptory instruction requested by the plaintiff (appellant) at the close of all of the testimony.

"II. The court erred in refusing Instructions III, V, VI, VIII, requested by the plaintiff (appellant).

"III. The court erred in giving Instruction `A' at the request of the defendant (respondent) because it is not predicated upon the evidence.

"IV. The court erred in admitting incompetent, irrelevant and immaterial testimony offered by the defendant (respondent) over the objection of the plaintiff (appellant).

"V. The court erred in refusing to permit counsel for plaintiff (appellant) to interrogate the defendant (respondent) in order to lay the basis for an objection to testimony as to an alleged oral agreement contradicting the terms of the written instrument sued upon.

"VI. The court erred in excluding evidence of the depreciation of the value of the capital stock of other corporations as compared with the decline in the value of the capital stock of Metal & Mining Shares, Inc., during the same period."

Opinion.

The defendant, who won this case below, has not seen fit to favor us with any brief or suggestion in opposition to the claims of error presented in a systematic and well-presented brief and argument filed by the plaintiff, appellant herein.

Reverting back to habits formed in the practice of the law, we are impelled to put forth some effort in defense of a trial court that stands charged with commission of error resulting in alleged advantage to a litigant who apparently has abandoned her cause.

The action herein is based upon an order of purchase duly executed in writing by the defendant herein to the plaintiff herein. If credit be given to the evidence on behalf of the plaintiff, it has performed all conditions and has tendered to defendant the stock purchased and demanded the balance of the purchase price which is stipulated in the subscription contract so executed by her.

The defendant, refusing to accept and pay for the stock so purchased, seeks to justify...