Bass v. Sanborn

• Decision Date: 04 June 1906
• Citation: 95 S.W. 955,119 Mo.App. 103
• Parties: ROBERT T. BASS, Respondent, v. HENRY B. SANBORN et al., Appellants
• Court: Kansas Court of Appeals

95 S.W. 955

119 Mo.App. 103

ROBERT T. BASS, Respondent, v. HENRY B. SANBORN et al., Appellants

Court of Appeals of Missouri, Kansas City

June 4, 1906

Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Botsford Deatherage & Young and Halstead & Halstead for appellants.

(1) There was a failure of proof. Beck v. Ferara, 19 Mo 30; Phleger v. Weltner, 21 Mo.App. 580; Priest v. Way, 87 Mo. 16; Chitty v. Railway Co., 148 Mo. 64; Clements v. Yeates, 69 Mo. 623; Cole v Armour, 154 Mo. 333. (3) The court erred in admitting oral testimony to show that there was an oral agreement between Sanborn and Bass that Bass would not be required to pay the note in controversy. Jones v. Shaw, 67 Mo. 667; Bank v. Fesler, 89 Mo.App. 217; Frissell v. Mayer, 13 Mo.App. 331. (4) The court erred in overruling defendants' demurrer to plaintiff's evidence. (a) Plaintiff's testimony did not prove the cause of action pleaded in the petition. (b) Plaintiff's testimony showed that the note was given for a consideration. (c) Plaintiff's testimony showed a confirmation of the purchase of the stock by the failure of plaintiff to rescind promptly upon discovering the alleged fraud. (5) The finding and judgment of the trial court was for the wrong party. Beebe v. Hatfield, 67 Mo.App. 615; Priest v. White, 89 Mo. 609.

Scarritt, Griffith & Jones for respondent.

(1) The statement of facts in this case is sufficient in itself to support the decree of the court. Wannell v. Kem, 57 Mo. 479; Hess v. Draffen & Co., 99 Mo.App. 580; Herman v. Hall, 140 Mo. 276; Wickham v. Grant, 28 Kan. 517. (2) Something is said in defendant's brief to the effect that what Sanborn said in regard to the condition of the company was a mere expression of opinion and not a statement of fact. This point is settled by the case Bank v. Hunt, 76 Mo. 444. (3) The assertion of appellant in his brief that there was a failure of proof in this case is puerile and cannot have been seriously meant. (4) The claim on the part of appellant that the court committed error in admitting proof of the representations of Sanborn that he would protect the plaintiff on said note and that it was executed for his accommodation, is clearly without merit.

OPINION

ELLISON, J.

--Plaintiff brought his bill in equity to set aside and cancel a promissory note for $ 1,000, which he had executed to defendant Sanborn. The judgment in the trial court was for the plaintiff.

It appears from the allegations in the bill that Sanborn was president of the Goodloe-McClelland Commission Company and that he sold to plaintiff ten shares of the stock of the company for $ 1,000. And that then he proposed to sell him another ten shares for $ 1,000. At first, plaintiff declined to purchase the additional shares. But Sanborn falsely and fraudulently represented that the company had $ 18,000 in its treasury and was solvent; that $ 30,000 of its $ 50,000 capital was paid up in cash; that it had no losses and that its assets, consisting of mortgages and notes, were as good as gold. That Sanborn represented that it would be better for the business of the company if he, plaintiff, would take these additional shares and that if he would permit such additional shares to be issued in his name and execute the note in controversy and put up the additional shares as collateral to secure the same, that he, Sanborn, would pay for the stock (that is, pay the note) and protect plaintiff against any liability. That plaintiff, relying upon all said representations, thereupon did execute the note and that "it was made for the accommodation of said Sanborn and without any consideration whatever moving from said Sanborn to plaintiff, and on the representation that said Sanborn would protect plaintiff on said note and pay for the additional ten shares of stock. That Sanborn wholly disregarding his duty to plaintiff and for the purpose of injuring and defrauding him" had the books of the company show an assignment of the note to the company, he, Sanborn, taking credit for the amount thereof on his personal account. It is then charged that the company knew the note was made without consideration and for the accommodation of Sanborn.

It will be observed that the bill charges fraudulent and false representations as to the value of the stock, the condition of the company, etc. It then charges that the note was given and the stock put up to secure it, as an accommodation to Sanborn and without any consideration and that plaintiff was not to pay it. If this be true, then it would seem that all fraudulent and false representations as to the value of the stock and assets, the condition of the company, etc., are of no consequence. For, if plaintiff executed...