Brooks v. Cooksey

Citation427 S.W.2d 498
Decision Date13 May 1968
Docket NumberNo. 52616,No. 1,52616,1
Parties5 UCC Rep.Serv. 920 Florence S. BROOKS, Appellant, v. Hobert L. COOKSEY, Respondent
CourtUnited States State Supreme Court of Missouri

Biggs, Hensley, Curtis & Biggs, George R. Wolf, St. Louis, Hansen & Stierberger, E. A. Stierberger, Union, for appellant, Florence S. Brooks.

Daniel, Raskas, Ruthmeyer & Schneider, H. Jackson Daniel, Bernard A. Ruthmeyer, Jr., St. Louis, for respondent, Hobart L. Cooksey.

J. MORGAN DONELSON, Special Judge.

Plaintiff brought action for $67,040 damages for breach of contract to sell certain bank stock owned by defendant and loss of the bargain of sale of said stock and other stock owned by plaintiff in said bank to third parties. The trial court sustained defendant's motion for summary judgment and entered its order for defendant.

We will review the record in the light most favorable to plaintiff against whom judgment has been rendered on motion for summary judgment, and we will treat those facts set forth in the affidavits, and not denied by affidavit, as admitted. Wood v. James B. Nutter & Co., Mo., 416 S.W.2d 635; Grubb v. Leroy L. Wade & Son, Inc., Mo., 384 S.W.2d 528. The burden is upon the defendant, the moving party, to show by unassailable evidence that there is no issue of fact remaining in the case and that he is entitled to summary judgment as a matter of law. Norman v. Willis, Mo.App., 402 S.W.2d 46; Nelson v. Browning, Mo., 391 S.W.2d 873.

The sufficiency of plaintiff's and defendant's pleadings are not in issue, but we shall briefly summarize them. This action was commenced on the 19th day of November, 1965. On May 3, 1966, plaintiff filed her first amended petition. It alleged that plaintiff and defendant individually owned certain bank stock, that on January 9, 1965, defendant contracted to sell plaintiff his stock for an agreed amount with payment therefor upon delivery of stock certificates, and that defendant failed to perform his agreement although plaintiff was ready and willing to perform her part of the agreement. Plaintiff further alleged that she had contracted with third persons for the sale of her stock and that to be acquired from defendant, and she was unable to perform her agreement with third parties. She further set forth that the stock had since lost all market value, and because of defendant's breach of contract she was damaged in the sum above set forth plus interest and costs.

On May 26, 1966, defendant filed his amended answer which admitted the residency of each party and ownership of the respective numbers of said bank stock, but denied all the other allegations. He also raised the defense of statute of frauds. On June 8, 1966, the plaintiff filed her reply which denied the applicability of the statute of frauds, because of partial performance by defendant in voting the stock as directed by plaintiff. She also asked that defendant be estopped to assert said defense because of her change of position by contracting to sell her stock and defendant's stock to third parties to her gross injustice and damage. Thereafter on August 2, 1966, after notice and by leave of court defendant filed his second amended answer. It also admitted the residency of the parties, admitted the number and ownership of said bank stock by defendant, but neither admitted nor denied plaintiff's ownership of her bank shares, and requested strict proof thereof. It denied all other allegations of the amended petition and further answered as follows:

'5. Answering further, Defendant says that at the time of the alleged agreement and bargain by Defendant, or at any time thereafter, to sell to Plaintiff the goods, to-wit: stock, mentioned in Plaintiff's Petition, no note or memorandum in writing was made thereof, nor signed by this Defendant, nor was any money or any other consideration paid by Plaintiff to Defendant in part payment, nor anything given by Plaintiff to Defendant, in earnest to bind the alleged bargain, nor was there any delivery by Defendant to Plaintiff or any acceptancy by Plaintiff of any part of the stock alleged by Plaintiff to be the subject matter of the alleged agreement set out in Plaintiff's Petition, thus barring Plaintiff's claim under the Statute of Frauds.'

There is no showing in the record that plaintiff filed a reply to the second amended answer or that plaintiff's original reply was refiled. However on August 25, 1966, defendant filed motion for summary judgment as provided by Civil Rule 74.04, V.A.M.R., and notice of said motion for hearing on September 7, 1966, together with the affidavit of Hobart L. Cooksey, defendant herein. This affidavit stated that he and plaintiff were parties to the suit, and set forth paragraph three (3) of plaintiff's first amended petition in regard to the agreement to sell the bank stock, the number of shares, etc.; that neither he nor anyone in this behalf entered into 'any agreement in writing', with plaintiff at or near the time or under terms set forth in plaintiff's petition; that there was never any note or memorandum signed by defendant which set forth the terms of the agreement; that there was no monetary or other consideration paid by anyone to defendant in part or full payment of any agreement, oral or written, by plaintiff or in her behalf; and further that there was neither delivery nor acceptance of any of defendant's shares of stock.

Plaintiff filed her counter-affidavit on September 7, 1966, as follows:

'Being duly sworn, Florence S. Brooks, state(s) as follows:

'1. That she is the Plaintiff in cause No. 5642 now pending in the Circuit Court of Franklin County, Missouri, wherein Hobart L. Cooksey is Defendant.

'2. Affiant states that on or about the 9th day of January, 1965, she and Defendant Cooksey came to an agreement, oral and not in writing, that Defendant Cooksey would sell all shares of stock owned by him in the Bank of Gray Summit (392) to Affiant at a price of $80.00 per share. Plaintiff agreed to pay the purchase price thereof immediately upon delivery of said shares to her by Mr. Leo Politte, the attorney for Defendant Cooksey.

'3. At the same time and in the presence of the same parties, Defendant directed his attorney, Mr. Politte, to vote all shares standing in Defendant's name, which were the shares subject to the agreement of sale mentioned above, as Affiant should direct him at the meeting of the shareholders of said Bank to be held very shortly after January 9, 1965.

'4. That Defendant's said attorney did so vote said shares as directed by Affiant.

'5. During the course of the discussions which culminated in the agreement to sell mentioned above, Affiant advised Defendant that she would offer the shares owned by her and those to be acquired from Defendant to certain persons then interested in the management of said Bank of Gray Summit and thereafter, in reliance upon the agreement of Defendant to sell the shares then owned by him to Affidant, Affiant entered into an agreement in writing with six of said interested persons collectively for the purchase of all shares of stock owned by her and those to be obtained from Defendant Cooksey pursuant to their agreement to sell. Said parties thereafter demanded that Affiant fulfill her agreement by delivering all said shares to them, but that she has been unable to do so because Defendant refused to deliver his shares to Affiant pursuant to their agreement as set out above.

'Further Affiant sayeth not.'

The court on the same date considered the pleadings and the affidavits and took under advisement the motion for summary judgment. On September 23, 1966, the court rendered its order finding that (1) the affidavits established that no writing or memorandum of the alleged contract ever existed, (2) the acts relied on by plaintiff to avoid the Statute of Frauds, § 432.020, RSMo 1959, V.A.M.S., were not sufficient, (3) the acts relied on by plaintiff as constituting partial performance are not in furtherance of the alleged agreement and therefore do not constitute part performance, and (4) the doctrine of partial performance had no application to plaintiff's action at law. It thereupon rendered a summary judgment for defendant. After plaintiff's motion for new trial was overruled, plaintiff filed this appeal.

We are immediately confronted with defendant's motion that plaintiff's appeal be dismissed under Civil Rule 83.09, V.A.M.R., or in the alternative certain designated portions of the statement of facts in plaintiff's brief be stricken upon the grounds that it goes beyond Civil Rule 83.05(c), V.A.M.R., by including conclusions of law and argumentative statements. Our examination thereof does not persuade us that the complained violations are of such magnitude as to warrant the action requested. The motion is accordingly overruled.

It is clear that the trial court in its order rendering summary judgment for defendant applied § 432.020, RSMo 1959, V.A.M.S. Plaintiff in her pleadings, after trial motion for new trial, and brief does not contest that it is the applicable statute, but asserts that defendant is not entitled to the benefits of the statute as a defense to her suit. Defendant in his brief cites said section as authority for his defense. We are aware that this section has been held to include within its provisions contracts for the sale of corporate stock. Fine v. Hornsby, 2 Mo.App. 61; Kludt v. Connett, 350 Mo. 793, 168 S.W.2d 1068, 145 A.L.R. 1014; Houston v. Mahoney, Mo.App., 219 S.W. 128. We note, however, that the Uniform Commercial Code enacted by the legislature in 1963 provided at § 400.8--319 RSMo 1959, V.A.M.S., a statute of frauds in regard to contracts for the sale of securities. The entire code, including this provision, became effective July 1, 1965. In 1965 the legislature again looked at certain provisions of said code, enacted amendments thereto and specifically repealed § 432.020, effective July 1, 1965. See Laws of Missouri 1965, page 605, § 10--102 and...

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    ...of tract not part performance of oral extension as sale not inconsistent with the lack of an extension agreement); Brooks v. Cooksey, 427 S.W.2d 498, 505 (Mo.1968) (concluding plaintiff's act in voting defendant's shares at stockholders' meeting not part performance of defendant's agreement......
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