Clubb v. Scullin

• Decision Date: 23 May 1911
• Citation: 235 Mo. 585,139 S.W. 420
• Parties: CLUBB v. SCULLIN.
• Court: Missouri Supreme Court

139 S.W. 420

235 Mo. 585

CLUBB v. SCULLIN.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

Rehearing Denied July 1, 1911.

1. APPEAL AND ERROR (§ 927) — REVIEW — NONSUIT.

In reviewing action compelling nonsuit and refusing to set aside a nonsuit taken with leave, every reasonable inference deducible from plaintiff's evidence will be assumed to be true, despite contradictory possible inferences or conflicting evidence.

2. TRIAL (§ 143)—TAKING CASE FROM JURY— WHEN PROPER.

It is only when the evidence and the reasonable inferences deducible therefrom are undisputed and the law applicable precludes recovery that it is proper to withdraw a case from the jury.

3. CORPORATIONS (§ 119)—SALE OF CORPORATE STOCK—WHEN COMPLETE.

A sale of corporate stock was complete when the seller accepted an offer to buy and directed the bailee of the stock to deliver it to

the buyer; the bailee thereafter holding the stock as agent of the buyer.

4. BROKERS (§ 19)—LIABILITIES OF BROKER.

An agency confined to acceptance of a fixed price and delivery of the property sold does not impose upon the agent the strict liabilities toward his principal attaching when one gives another power to exercise full judgment and discretion in selling property.

5. BROKERS (§ 31)—DUTY OF BROKER.

A broker who gratuitously offered to procure sale of corporate stock at a fixed price was not bound to inform the seller that he was a stockholder in a trust company which acted as purchasing agent of the buyer, or that he was largely interested in the securities of a railroad company which sought to acquire the stock.

6. BROKERS (§ 23)—DUTY OF BROKER.

Where a sale of corporate stock had been completed by the seller accepting an offer of a fixed price and directing the bailee to deliver the stock to the buyer. a broker who acted gratuitously for the seller did not break his duty to the seller by delivering the stock from the bailee to the buyer, though in the meantime the value of the stock had greatly increased.

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

Action by Samuel C. Clubb against John Scullin. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff, a minor when this suit was brought, now of full age and a party to the cause, alleges in his petition that on the 25th of April, 1902, his mother, Eleanore Clubb, as his guardian and curatrix, held 145 shares of stock in the Wiggins Ferry Company, which defendant agreed to sell for the highest market price; that defendant was then a stockholder in the Mercantile Trust Company and "largely interested" in the Chicago, Rock Island & Pacific Railway Company; that said railway company was then desirous of procuring control of the Wiggins Ferry Company through the purchase of a majority of its capital stock; that defendant procured the employment of the Mercantile Trust Company as purchasing agent of said railway company; that defendant agreed with said railway company to assist its purchasing agent in procuring a majority of the capital stock of said Wiggins Ferry Company at the price of $500 per share; that at said dates and afterwards the Mississippi Valley Trust Company of St. Louis, as purchasing agent for the St. Louis Terminal Association of St. Louis, was also endeavoring to purchase and acquire the stock of said Wiggins Ferry Company, which was known to the defendant; that defendant sold plaintiff's shares to the said railway company through its purchasing agent for the sum of $500 per share, amounting to $72,500, and delivered the same to the purchaser, and caused a transfer to be made of said stock on the books of said Wiggins Ferry Company; that, while so doing, defendant "wrongfully and fraudulently concealed from plaintiff and from plaintiff's said guardian the fact that he was in any manner interested in either the said railway company or its purchasing agent, or was in any wise acting on behalf of either of said companies"; that defendant broke his agreement and acted in violation of his duty as agent in selling said shares of stock for the sum above named at a time when he had knowledge that they could be sold for $1,500 per share, and withheld that knowledge from plaintiff's guardian and curatrix, well knowing she was ignorant of said fact; that by defendant's fraudulent refusal to sell said shares at the value of $1,500 each, plaintiff lost the sum of $145,000, for which he prayed judgment.

The answer was a general denial, coupled with a second defense setting forth the following telegram: "St. Louis, April 24, 1902. Ellen Clubb, S. C. Clubb. The Grafton, Conn. Av., Washington, D. C. I am offered five hundred dollars per share for a majority or all of the stock of the Wiggins Ferry Co. Have agreed to sell all my holdings and strongly recommend you to do likewise. If you concur in my recommendations, send me your stock by mail at once, and if the owners of a majority of stock agree to sell I will forward to you five hundred dollars per share for your holdings on or before May 5th next. Please regard this as strictly confidential. Wire reply immediately. John Scullin, Pres't Wiggins Ferry Co."

That pursuant to an authority from said Eleanore Clubb, plaintiff's guardian and curatrix, defendant signed an agreement to sell the shares of stock of this plaintiff and an equal number of shares of his sister, and 179 shares of the said Eleanore Clubb, on the terms set forth in the above telegram; that said Eleanore Clubb delivered all of the shares of this plaintiff and of his sister and 34 shares of her own, but failed and refused to deliver the remaining 145 shares of her own, and demanded as a condition of said delivery the payment of the further sum of $145,000; that this defendant had thereafter no further connection with the matter, but the said Eleanore Clubb thereafter dealt directly with the Mercantile Trust Company, and entered into an agreement with it on the following terms, to wit: "St. Louis, May 2, 1902. The Mercantile Trust Company having purchased from Eleanore Clubb four hundred sixty-nine (469) shares of the capital stock of the Wiggins Ferry Company for the total sum of $379,500, hereby releases and discharges said Eleanore Clubb from any and all claims for damages or otherwise on account of her agreement to sell said shares or any thereof to said Mercantile Trust Company and agree to keep her harmless from any and all such claims. [Signed] Mercantile Trust Company, by Festus J. Wade, President. Accepted. [Signed] Eleanore Clubb. The above-mentioned purchase of 469 shares of stock in the Wiggins Ferry Company, and the release of the said Eleanore Clubb, were made with our approval and sanction, and we ratify and confirm the same as done for our benefit. May 2, 1902. [Signed] The Chicago, Rock Island & Pac. Ry. Co., by Robert Mather, Vice President."

That said agreements between the said Eleanore Clubb and the Mercantile Trust Company as the purchasing agent of said railway, and the said railway on its own behalf were in full accord and satisfaction of all claims and demands of whatever nature growing out of the sale of any part or all of the said 469 shares of capital stock of the Wiggins Ferry Company belonging to the said Eleanore Clubb and plaintiff and his sister. The reply was a general denial.

Upon the trial of these issues the evidence tended to show that, consequent to the purchase of the St. Louis & Colorado Railroad, the Chicago, Rock Island & Pacific Railway desired an eastern entrance into the city of St. Louis by acquiring a majority of shares of stock of the Wiggins Ferry Company; that to accomplish this purpose it employed the Mercantile Trust Company of St. Louis as a purchasing agent of said stock; that defendant was president of the Wiggins Ferry Company and the owner of a large number of the shares of its capital stock; that the plaintiff and his sister and mother were owners of capital stock of said Wiggins Ferry Company in the following proportion: 145 belonging to plaintiff, same amount belonging to his sister, and 179 belonging to their mother; that after the receipt of the telegram addressed to her by defendant, and set out in defendant's answer, Mrs. Eleanore Clubb telegraphed in reply, as follows: "Baltimore, Md., April 25, 1902. Mr. John Scullin, Pres't Wiggins Ferry Co., St. Louis. Accept offer for myself, Helen and Sam. Certificates with Union Trust Company. Eleanore B. Clubb."

In reply to which defendant telegraphed her, as follows: "St. Louis, Mo., April 26, 1902. (Received at Baltimore April 27, 1902.) Mrs. Eleanore B. Clubb, 303 Oakdale Road, Roland Park. Upon authority of your telegraphic reply to my telegram of April 24th, I have accepted in writing for you, Helen and Sam the proposition of Mercantile Trust Company agent of purchasers to purchase at five hundred dollars per share the majority of the stock of Wiggins Ferry Company. Please direct Union Trust Company to deliver certificates to me or to Mercantile Trust Company immediately. John Scullin."

Mrs. Clubb on the same day sent the following telegram: "Baltimore, April 26, 1902. George A. Mills, Sec'y Union Trust Company, St. Louis, Mo. Sold Wiggins at five hundred. Deliver all certificates you have to Scullin. Eleanore B. Clubb."

That at 1:09 p. m. Monday, April 28, 1902, Mrs. Clubb sent the following telegram to defendant: "Baltimore, Md., April 28, 1902. John Scullin, Pres't., Wiggins Ferry Company. St. Louis Trust Company can deliver certificates for 324 shares. The 145 shares are in my safe deposit box. I shall have to go get them. Would the third of May be time enough to deliver them. Answer. Eleanore Clubb."

On Monday, April 28, 1902, about 9:30 o'clock p. m., the St. Louis Union Trust Company delivered to defendant the following shares of stock (as per notation on its books): "Helen, 145 shares at $500.00, April 30, 1902, $72,500; Sam, 145 shares at $500.00, April 30, 1902, $72,500; Eleanore, 34 shares at $500.00, April 30,...