Baumhoff v. St. Louis & K. R. Co.

• Decision Date: 29 May 1907
• Citation: 104 S.W. 5,205 Mo. 248
• Court: Missouri Supreme Court
• Parties: BAUMHOFF v. ST. LOUIS & K. R. CO. et al.

104 S.W. 5

205 Mo. 248

BAUMHOFF v. ST. LOUIS & K. R. CO. et al.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. SPECIFIC PERFORMANCE — CONTRACTS ENFORCEABLE — CONTRACT TO DELIVER STOCK.

Specific performance of a contract to deliver corporate stock will lie, where the stock's

pecuniary value is not provable, and in consequence one may not have adequate damages at law.

2. JUDGMENT — RES JUDICATA.

Plaintiff built a railroad under a contract to receive bonds, money, and stock of the company deposited with a trust company, and sued to recover the money and the value of the stock, and to enforce a lien therefor; the trust company being dismissed as a party. He was adjudged a lien, recovery of the money, and to be entitled to receive $25,000 in paid-up shares of the railroad company's capital stock. No money judgment was rendered for the stock, because it was not shown to possess pecuniary value. Held, that the judgment did not preclude him from suing in equity to compel the trust company to deliver him the certificate of the stock, and to compel the railroad company to transfer the shares upon its books.

3. SAME — BAR — SPLITTING CAUSES OF ACTION.

Plaintiff was not barred from recovering in the second suit on the theory that it was a splitting of a cause of action.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Suit by George W. Baumhoff against the St. Louis & Kirkwood Railroad Company and another. Defendant railroad company appeals from a decree for complainant. Affirmed.

Jefferson Chandler, T. M. Pierce, and S. P. McChesney, for appellant. Lehmann & Lehmann, for respondent.

LAMM, J.

Plaintiff, suing in equity for specific performance, sought to compel defendant trust company to deliver to him a certain certificate No. 2 for 250 shares of the full-paid, nonassessable capital stock of the defendant railroad company held by the former in trust under a contract, and to compel the railroad company to transfer said shares of stock to him upon its books in the manner and form prescribed by its by-laws, and for such further and general relief as may be deemed just and equitable. The decree went as prayed. The trust company made no defense, so far as disclosed, and abides the decree; the railroad company (hereinafter called defendant) alone appealing.

Defendant makes two questions here: Thus: (a) "The court erred in holding that the former suit was not res adjudicata, and did not finally dispose of the suit in controversy;" and, (b) "the court erred in holding that plaintiff could split up his cause of action, and could legally maintain his present suit." To dispose of these propositions understandingly, it will be necessary to summarize here the history of a former case (called herein the "lien case"), viz.: In 1895 plaintiff and defendant entered into a contract in writing, whereby plaintiff agreed to build and equip for defendant an electric railroad from the limits of St. Louis city to a local point in St. Louis county, known as "Meramec Highlands," on a line shown by plats called for and attached. The scheme contemplated that defendant should issue 300 bonds of $1,000 each, due in 20 years, with 6 per cent. semiannual interest coupons attached, to be secured by a good and sufficient first mortgage deed conveying to said trust company its properties, real, personal, and mixed, and all its franchises, and should deliver said mortgage deed, said bonds, with $25,000 of its capital stock (duly endorsed by the person in whose name said stock may stand upon defendant's books), and also certain bonus subscriptions to the trust company, and the trust company at certain designated times should turn over certain of said bonds to plaintiff as part payment for building and equipping said road, and, upon full performance, was to turn over to plaintiff enough more bonds to make $250,000 in bonds, and turn over to him said $25,000 of capital stock and so much as $5,000 of said bonus — aggregating in cash, stock and bonds $280,000 in full consideration for due performance. The bonds were issued, the mortgage deed executed, and defendant caused to be issued a certificate for $25,000 in face value of its full-paid, nonassessable capital stock, to wit, certificate No. 2 for 250 shares, standing in the name of one Pitman, trustee, bearing his blank indorsement, attested by its secretary, and did cause said bonds, mortgage deed, stock certificate, and bonus subscription to come into the hands of said trust company, to be held and dealt with under said construction and equipment contract. Presently plaintiff entered upon performance, and from time to time received from the trust company part payment in bonds. There came a time when he had taken down his full quota of bonds, and, claiming full performance, demanded of the trust company full payment. But a squabble arising at that time between plaintiff and defendant, the trust company, under notice from defendant not to make full payment, declined to do so, and a suit followed.

It will be convenient to follow with some particularity, not only the pleadings, but other parts of the record in such suit (the lien case), because in those pleadings and in that record (made part of the record of the case at bar) are laid away the facts relied upon by defendant to show res judicata and a splitting of a cause of action, i. e., estoppel by record. It seems defendant, having entered into possession of the railroad and its equipment, turned round and leased them to another corporation known as the "Highland Scenic Railroad Company." In this fix plaintiff took steps to fasten a contractor's lien upon the roadbed, rolling stock, etc., under art. 4, c. 47, Rev. St. 1899 [Ann. St. 1906, pp. 2324-2332], providing for liens of contractors, materialmen, and laborers against railroads, designing to make said lien have precedence over said $300,000 incumbrance. Having in due time filed his lien paper with the circuit clerk, and served defendant and the said Scenic Company with a copy, he sued to recover $30,000, as the balance due him under his contract, and to foreclose his lien, making three corporations, viz., both the present defendants (the St. Louis Union Trust Company being impleaded under its former name of "St. Louis Trust Company") and the Scenic Company parties defendant. The lien case was tried on an amended petition, wherein plaintiff pleaded the incorporation of the three defendants, set forth his construction and equipment contract, averred due performance, alleged the facts entitling him to a lien, admitted the receipt of $250,000 in bonds by way of part payment, averred nonpayment of the stock and bonus through the wrongful interference of the railway company, and prayed judgment against the latter company (defendant here) for the sum of $30,000 balance due and unpaid under the terms of the contract, and that such judgment be made a lien, that the same be foreclosed, and that the Scenic Company be compelled to show its interest and be bound by the judgment. The petition also contained an averment that the lease to the Scenic Company was "a pretended lease," and another to the effect that the said capital stock was to be of the value of $25,000, and still others questioning that defendant's stock was full paid and nonassessable as contemplated in the contract. The trust company filed a separate answer admitting the contract, that plaintiff entered upon its performance — the filing of the lien paper — that the railroad company entered into possession and began operating the railroad, the deposit of the mortgage deed, bonds, and stock certificate with it, and that the railroad company had notified it not to deliver the stock to the plaintiff; but it denied that it had refused such delivery, and averred it was now willing to deliver, and had no knowledge or information sufficient to form a belief, and therefore could neither admit nor deny that the stock was to be of the value of $25,000. After admitting some and denying other allegations not material here, the answer pleaded matter intended to defeat any preference of plaintiff's lien over the mortgage indebtedness, and immaterial matter relating to the bonus. The bonds having gone into circulation, the life of this answer was the protection of said mortgage indebtedness from any preference in favor of plaintiff for the unpaid contract price, and issue was joined by a reply. Thereafter the Scenic Company filed its separate answer, directing itself, in the first instance, to the allegation that it held under "a pretended lease." It says its lease was quite to the contrary, to wit, "valid and lawful"; that plaintiff had abandoned his contract without substantial performance; had been paid an amount largely in excess of the value of his labor and material; that the Men paper damaged the property of the defendant as lessee, in that it stated that plaintiff's claim for a large sum of money and the account filed are "true and correct," whereas such statement was "wholly false and defamatory and libelous"; that plaintiff "without probable cause and well knowing that the statement filed by him (to wit, the lien paper) was wholly false, did maliciously, and for the purpose of injuring this defendant, destroying its credit, and crippling it in the operation of said railroad, utter and publish said false statement, etc.; that it had desired to issue $100,000 in bonds and borrow said amount, etc., and had been unable to do so by reason of the premises; that the market value of its bonds was destroyed, and they became unsalable, etc., to its damage in the sum of $20,000 for which it prayed judgment. The railroad company filed its separate amended answer, admitting the contract, but denying performance, and setting forth a schedule of faults, defaults, etc. Said answer admitted the execution and deposit with the trust company of the mortgage deed, bonds, stock, and bonus subscriptions; averred that the stock was...