Bodine Aluminum Co., Inc. v. Mitauer
| Decision Date | 12 September 1989 |
| Docket Number | No. 55700,55700 |
| Citation | 776 S.W.2d 485 |
| Parties | BODINE ALUMINUM COMPANY, INC., Plaintiff/Respondent, v. Harlin MITAUER, Individually and as Statutory Trustee of East Side Metals, Inc., and Louis Mitauer, Individually and as Statutory Trustee of East Side Metals, Inc., and Bernice Mitauer, Individually and as Statutory Trustee of East Side Metals, Inc., Defendants/Appellants. |
| Court | Missouri Court of Appeals |
Donald V. Nangle, St. Louis, Mo., for defendants/appellants.
W. Donald Dubail, Terry A. Parkinson, St. Louis, Mo., for plaintiff/respondent.
In this jury-tried action on an account, defendants, Harlin, Louis, and Bernice Mitauer, appeal the judgment entered against them individually and as statutory trustees of East Side Metals, Inc., in favor of plaintiff Bodine Aluminum Company, Inc., for $17,064.36. We affirm.
The three defendants raise one point. They assert the trial court abused its discretion "in allowing speculation by [Bodine] as to the weight of the scrap aluminum and fixing of price for an eight (8) month period in a market that was not stable and departing from the prior custom established with defendant Mitauer in fixing the price within thirty (30) to forty-five (45) days of the transaction." We disagree, because there was sufficient evidence for the jury to determine the amount owed.
Defendants Harlin and Bernice 1 also raise a point concerning the judgment rendered against them. They allege the judgment "should be overturned as neither of these defendants, individually or as statutory trustees of a defunct corporation, had any dealings with [Bodine] or knew anything about the account." We disagree, because as officers of a corporation which had its charter forfeited, they failed to take any steps to wind up the corporation's business and therefore, are personally liable for the corporation's debts.
East Side was a Missouri corporation. In November, 1984, its charter was forfeited. On East Side's last annual registration report, signed by Louis, the three defendants were listed as officers and directors. Although East Side's charter was forfeited, the business continued to operate.
East Side and Bodine had a business relationship for about eight years. Pursuant to an oral agreement originally negotiated by Harlin, East Side hauled aluminum scrap and trash from Bodine's place of business. The scrap, consisting of dross and grindings, 2 was resold by East Side on a secondary market.
About 30-45 days after picking up the scrap, East Side would pay Bodine a portion of the scrap's estimated selling price. After East Side sold the scrap, it paid Bodine the balance owed.
Bodine's petition claimed that "[b]etween the dates of January 15, 1985 and August 9, 1985 [East Side] purchased from [Bodine] certain merchandise for which [East Side] agreed to pay" a reasonable price. A reasonable price, Bodine claimed, was $27,202.18. Acknowledging that East Side had paid $10,137.82, Bodine claimed a balance due of $17,064.36.
The three defendants allege "the trial court abused its discretion in allowing speculation by [Bodine] as to the weight of the scrap aluminum" and its price. Since that testimony was received without objection, we construe defendants' first point to be challenging the sufficiency of the evidence.
In reviewing a challenge to the sufficiency of the evidence, we view the evidence "in the light most favorable to plaintiff, giving [it] the benefit of all reasonable inference[s] and disregarding defendants' evidence except as it may support the verdict." Marshall v. Edlin, 690 S.W.2d 477, 479 (Mo.App.W.D.1985).
Bodine's vice president testified that Bodine's agreement with East Side called for East Side to haul Bodine's trash at no charge to Bodine. In consideration of that service, East Side paid Bodine "a price at somewhat less than the fair market price" for the scrap. In 1985, East Side was paying five cents a pound for dross and nine cents a pound for grindings. Tickets indicating the number of containers of scrap picked up by East Side were received in evidence. Bodine's vice president testified as to the average weight of the scrap in the containers.
This testimony constituted sufficient evidence to enable the jury to make the necessary calculations to determine the amount East Side owed Bodine. Since the correctness of the account depended upon oral testimony in plaintiff's behalf, " 'the question whether such testimony was to be believed was for the jury.' " O'Connor v. Egan, 274 S.W.2d 334, 338 (Mo.App.S.D.1955) (quoting S.J. Travis & Co. v. Means, 192 S.W. 119, 120 (Mo.App.W.D.1917)).
Defendants argue Bodine "was allowed, over the objection of [East Side], to use wildly speculative damaging calculations." To the contrary, Bodine's testimony of five and nine cents a pound was in response to questions as to what East Side was paying "during this particular time period." This testimony, along with the tickets showing the number of containers, was received without objection. Finally, evidence of the average weight of scrap in the containers was also received without objection. Point denied.
The point relied on raised by defendants Harlin and Bernice is: "Judgment against Harlin and Bernice Mitauer should be overturned as neither of these defendants, individually or as statutory trustees of a defunct corporation, had any dealings with the plaintiff or knew anything about the account."
Section 351.525, RSMo 1986, provides:
If any corporation: (1) Fails to comply with the provisions of this chapter with respect to its annual...
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