Cammann v. Edwards

• Decision Date: 14 December 1936
• Docket Number: 34208
• Citation: 100 S.W.2d 846,340 Mo. 1
• Parties: F. A. Cammann, Appellant, v. Albert N. Edwards, J. M. Woods, Presley Edwards, Ben F. Edwards, as Partners Doing Business Under the Firm Name, A. G. Edwards & Sons
• Court: Missouri Supreme Court

100 S.W.2d 846

340 Mo. 1

F. A. Cammann, Appellant, v. Albert N. Edwards, J. M. Woods, Presley Edwards, Ben F. Edwards, as Partners Doing Business Under the Firm Name, A. G. Edwards & Sons

No. 34208

Supreme Court of Missouri

December 14, 1936

Appeal from Circuit Court of City of St. Louis; Hon. M Hartmann, Judge.

Reversed and remanded (with directions).

Charles A. Lich and Louis L. Hicks for appellant.

(1) The court erred in sustaining defendants' motion for judgment on the pleadings. (a) Because the plaintiff's cause of action sounded in tort and the tort having been committed as alleged, a cause of action then accrued to the plaintiff which could only be destroyed by a legal release supported by a valid and valuable consideration. Mathieson v. Ry Co., 219 Mo. 542; Smissman v. Wells, 255 S.W 935; Milliken v. Larrabee, 192 S.W. 103; Chapman v. K. C. Ry. Co., 146 Mo. 508. (b) Because the cause of action sounded in tort and the equitable defense of estoppel is inapplicable by way of bar. State ex inf. v. Sikeston, 53 S.W.2d 394; Fisher v. Dry Goods Co., 46 S.W.2d 902; Loan Co. v. Insurance Co., 52 S.W.2d 1. (c) Because the defense of account stated and estoppel is inapplicable for the reason that the pleadings show that plaintiff objected to the correctness of the account prior to the receipt by him or his assignor of any statement of account. Cases under (b). (d) Because there never was any agreement between the parties as to the correctness of the account sufficient to sustain the defense of account stated and estoppel. Conkling v. Lumber & Mfg. Co., 20 S.W.2d 564; Lumber Co. v. Crosby, 20 S.W.2d 552; McDonough v. Pans, 209 N.Y.S. 440. (e) Because the verification sent by the plaintiff to the accountant was a transaction occurring after the account had been closed, and, therefore, could not legally give rise to an account stated or justify a defense on this basis. Pattern v. Levy, 177 N.Y.S. 895; General Contracting Corp. v. United States ex rel., 70 F.2d 83; Dempsey v. McGinnis, 219 S.W. 151; Crowell v. Houde Engineering Co., 19 S.W.2d 516; Wagner v. Petersen, 83 Pa. 238; McDonough v. Pane, 209 N.Y.S. 440; 1 Words and Phrases, p. 96. (2) Plaintiff's motion for judgment on the pleadings should have been sustained because the defendants have pleaded no valid and legal defense to plaintiff's petition. Houston v. Mahoney, 219 S.W. 128; Fine v. Hornsby, 2 Mo.App. 61; Bernhardt v. Walls, 29 Mo.App. 206, 219 S.W. 128; Cook on Corporations (6 Ed.), sec. 339.

Jeffries, Simpson & Plummer for respondents.

(1) Admissions made by plaintiff's counsel in his opening statement are available on defendants' motion for judgment on the pleadings. Chaput v. Bock, 224 Mo. 73, 123 S.W. 16. (2) An account stated barring plaintiff's right to recover was shown by the pleadings. Wonderly v. Christian, 91 Mo.App. 158; McCormick v. Ry. Co., 154 Mo. 191; Dameron v. Harris, 281 Mo. 247; Koegel v. Givens, 79 Mo. 77; Barr v. Lake, 147 Mo.App. 252. (3) Plaintiff's reply was withdrawn when he filed a motion for judgment on the pleadings. State ex rel. v. Fields, 218 Mo.App. 155, 263 S.W. 853; State ex rel. v. Bright, 224 Mo. 514; Cox v. Capron, 10 Mo. 691. (4) Plaintiff voluntarily paid the amount charged for the Prince & Whitely stock and received such stock or its proceeds, and such voluntary payment cannot be recovered back. Sooy v. Winter, 188 Mo.App. 150; Pritchard v. Peoples Bank of Holcomb, 198 Mo.App. 597; Claflin v. McDonough, 33 Mo. 412; Detroit Edison Co. v. Wyatt Coal Co., 293 F. 489; Manhattan Mill Co. v. Manhattan G. & E. Co., 115 Kan. 712; Hadley v. Farmers' Natl. Bank, 125 Okla. 250. (5) Plaintiff's second amended petition states no cause of action. Golden v. Moore, 126 Mo.App. 518; Citizens Bank of St. Louis v. Tiger Tail Mill & Land Co., 152 Mo. 145; Defeo v. Goodwin, 221 Mo.App. 789, 287 S.W. 1075; O'Toole v. Lowenstein, 177 Mo.App. 662; Schwald v. Brunjes, 139 Mo.App. 516; Central Mfg. Co. v. Montgomery, 144 Mo.App. 494; St. Louis Catering Co. v. Glancy, 294 Mo. 438; New First Natl. Bank v. Rhodes, 332 Mo. 163, 58 S.W.2d 742; Sebastian County Coal & Mining Co. v. Fidelity Fuel Co., 310 Mo. 158. (6) A contract between a customer and his agent for the purchase of corporate stock is not one required to be in writing under the Statute of Frauds. Kutz v. Fleisher, 67 Cal. 93; Hatch v. McBrien, 83 Mich. 159; London v. Smith, 101 S.C. 340; Jameson & Co. v. Redfield, 4 P.2d 817; Simsons v. Rubin, 260 N.Y.S. 776, 145 Misc. 761; Colt v. Clapp, 127 Mass. 476; Wiger v. Carr, 131 Wis. 584.

OPINION

Frank, J.

Action to recover the sum of $ 37,500 because of certain alleged stock transactions. Each party filed motion for judgment on the pleadings. Defendants' motion was sustained and plaintiff's motion was overruled. Judgment was rendered for defendant and plaintiff appealed.

A consideration of the pleadings is necessary in order to determine the propriety of the trial court's disposition of the two motions. The pleadings are lengthy. The facts pleaded will be stated and considered in connection with the questions discussed.

The gist of plaintiff's petition is that he employed defendants as his broker to buy and sell stocks and securities for him on margin; that he had on deposit with defendants money and securities in excess of $ 40,000; that defendants without authority or order from plaintiff sold to him certain stocks for $ 37,500 and charged that sum against his account; that when plaintiff discovered this transaction he notified defendants that he had not ordered such stocks and requested defendants to remove the charge therefor from his account; that defendants refused to remove the charge and later disposed of certain securities which plaintiff had on deposit with them for $ 52,925.92, used $ 37,500 of the proceeds of such sale to pay for the stock which they claimed they had sold to plaintiff, and credited the balance to plaintiff's account.

It is plaintiff's position that defendants' act in disposing of securities which he had on deposit with them, and using the proceeds thereof to pay for certain stocks which he did not authorize them to purchase for him, amounted to a conversion of his securities.

Defendants contend that plaintiff's petition does not state a cause of action in conversion, in that it does not allege that plaintiff had the possession or right to possession of the securities alleged to have been converted, at the time of the alleged conversion.

It is settled law that in an action for the conversion of personal property the failure to allege in the petition that the plaintiff had possession or the right to possession of the property sued for at the time of the conversion, amounts to a failure to state a cause of action. However, this rule of law does not mean that plaintiff must allege, in express words, that he had the possession or right of possession at the time of the conversion. Under our code there is but one form of action and the plaintiff need only allege the facts upon which he seeks to recover. The technical rules formerly applicable to the commonlaw action of trover cannot be applied to defeat an action for conversion in which plaintiff states facts which, if true, entitle him to the relief asked. [Knipper v. Blumenthal, 107 Mo. 665, 18 S.W. 23.] If a petition states facts from which it can be legally inferred that plaintiff had possession or right of possession at the time the property was converted, it is sufficient. [65 C. J., pp. 79, 80, sec. 130; Coal & Mining Co. v. Fuel Co., 310 Mo. 158, 169, 274 S.W. 774; Wilkinson v. Misner, 158 Mo.App. 551, 556, 138 S.W. 931.]

Wilkinson v. Misner, supra, was an action in the nature of trover as for the conversion of certain shares of stock. The facts were that plaintiff was in possession of certain shares of stock of the par value of $ 15,000 pledged to him by defendant as security for a loan. Defendant represented to plaintiff that if he would surrender the stock to him, he (defendant) would sell same for cash and out of the proceeds thereof would pay plaintiff $ 5000 on the loan, and that if he did not succeed in so doing within thirty days he would return the shares of stock to plaintiff. The stock was delivered to defendant for the purpose mentioned and he converted same to his own use. Plaintiff brought suit for conversion of the stock. Defendant contended that the petition did not state a cause of action for the reason that it did not expressly aver that plaintiff either had possession or the right of possession of the shares of stock at the time of the conversion. The petition did not allege, in express terms, that plaintiff had possession or right of possession of the shares of stock, but it did allege facts which, if true, entitled plaintiff to possession. In holding the petition good, the court, among other things, said:

"The petition avers plaintiff was in possession of the stock and held it as collateral security for an indebtedness and delivered it to defendant for the particular purpose mentioned, and this implies that plaintiff was entitled to the possession at the time of conversion, except for the right of defendant to deal with it in accordance with his agency. It appearing from the petition, too, that defendant did not adhere to the agency involved but instead sold the stock and converted the proceeds to his own use, it is necessarily implied therefrom that plaintiff was entitled to the possession of the certificates at the time of the conversion as defendant had no right in the premises whatever except to perform the agency delegated. Everyone is estopped from taking advantage of his own wrong. [Broom's Legal Maxims, 279.] A petition not challenged by demurrer is to be considered sufficient after verdict, though it may be short in express...