Colburn v. Krenning

• Decision Date: 13 March 1920
• Docket Number: No. 21120.,No. 21415.,21120.,21415.
• Parties: COLBURN v. KRENNING.
• Court: Missouri Supreme Court

220 S.W. 934

COLBURN v. KRENNING.

No. 21120.

No. 21415.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Motion for Rehearing Denied April 9, 1920.

Appeal from St. Louis Circuit Court; Thomas Bond, Judge.

Suit by Webster Colburn against Henry B. Krenning, in which defendant filed a cross-bill. From the judgment rendered both parties appeal. Affirmed.

This suit was instituted in the circuit court of the city of St. Louis, Mo., on September 15, 1917, by Webster Colburn, against defendant, Henry B. Krenning, to recover commissions for services performed by plaintiff, in finding buyers for 1,700 shares of the capital stock of the Dorris Motor Car Company, belonging to said defendant; and for so formulating, promoting, and consummating a plan of refinancing and reorganizing said company as to enable defendant to sell said stock.

The petition is in two counts; the first, based upon an alleged contract for services performed, and the second, in general assumpsit, upon a quantum meruit, in which recovery was asked for the reasonable value of the same service. The amount sued for and claimed to be due in each count was $11,875.

At the close of plaintiff's case, and during the progress of the trial, defendant, over the objection of plaintiff, was permitted to amend his answer, as to the second count of petition, by alleging that whatever services were rendered in procuring the sale of said stock and reorganizing the Dorris Motor Car Company were rendered under a special agreement between plaintiff and defendant whereby the latter agreed to pay plaintiff for all of said services 1¼ per cent. of the amount realized from the sale of defendant's stock in said company.

Cross-Bill.

As a counterclaim, and by way of cross-bill, defendant alleged that on February 19, 1917, he was the owner of 1,700 shares of the capital stock of said company; that about said time a contract for the reorganization of the Dorris Motor Car Company and the sale of defendant's stock in said reorganized company was entered into between plaintiff and defendant, and plaintiff and his associates; that as part of said contract defendant agreed to sell and deliver to plaintiff 604 1/6 shares of the reorganized capital stock of the Dorris Motor Car Company, for the sum of $25,000, to be paid for as follows: Fifteen thousand dollars in cash to be paid on February 24, 1917, and five negotiable notes of said plaintiff, each for the sum of $2,000, due, respectively, in one, two, three, four and five years after date, to be secured by the deposit of 483 shares of said stock as collateral; that when said cash payment became due, plaintiff only paid $5,000 thereon, and, being unable to pay defendant the balance of $10,000, required under said agreement, the plaintiff agreed to pledge 250 shares of said reorganized capital stock of said company with defendant as collateral; that plaintiff did thereupon deposit and deliver to defendant said 250 shares of stock to secure the payment of the amount aforesaid; that the certificate for said 250 shares, numbered 136, was held as collateral aforesaid, but defendant was not empowered to sell the same.

The defendant then prayed the court for a decree, that he recover of plaintiff the $10,000, with interest thereon, from February 24, 1917, at the rate of 6 per cent, per annum; that the amount of said indebtedness be decreed a special lien against the plaintiff's said 250 shares of the common stock of said company, then held by defendant as collateral; that the court, by its decree, order said collateral sold, and all the right, title, and interest `therein of plaintiff be foreclosed at such time, and on such terms, as the court may deem proper; that the proceeds be applied towards the payment of said indebtedness; that defendant have judgment against plaintiff for the deficiency, with execution therefor, and for such other relief as may be proper under the circumstances.

Reply and Answer to Cross-Bill.

Plaintiff by reply and answer to said counterclaim, first admitted a number of the allegations set out in said counterclaim, not necessary to describe here. He denied therein that he agreed to pay defendant the sum of $5,000, and secure the remaining $10,000 by the pledge of his 250 shares of the common stock of said company, as collateral. He further denied therein that on February 24, 1917, he became indebted to defendant in the sum of $10,000, as the balance of the cash portion of the purchase price then due according to said agreement. He denied that he assigned, pledged, and delivered to defendant his certificate number 136 for 250 shares of the common stock of said company. He further averred that all the matters set up in said counterclaim were matters and things that arose out of, and were the result of, his efforts to secure a purchaser, or purchasers, for and effecting the sale of defendant's stock, as charged in petition.

Defendant by way of reply denied all the allegations of new matter set up in plaintiff's reply and answer aforesaid. After the pleadings were made up, on March 11, 1918, defendant filed herein a motion to transfer the cause to the equity division of the court, and to try the whole case as a proceeding in equity, on the ground that the allegations of his cross-bill converted the whole case into a proceeding in equity. This motion was overruled, and an exception saved. Defendant objected to the case being tried by a jury, which objection was overruled and an exception saved. Without defendant waiving his objection supra, it was finally agreed in open court that plaintiff's case and defendant's cross-bill should be tried at the same time, the plaintiff's case to the jury, and defendant's cross-bill by the court. The trial was commenced in division No. 0 in the above manner, before Judge Thomas Bond and a jury, on March 13, 1918, at the February term, 1918, of said court.

On March 15, 1918, at the close of plaintiff's case, on request of defendant, the court gave a peremptory instruction in the nature of a demurrer to plaintiff's evidence, under the first count of petition, and thereupon plaintiff took an involuntary nonsuit, with leave, etc., as to said first count, and in due time filed his motion to set aside said nonsuit and for a new trial. On March 10, 1918, the jury returned a verdict in favor of plaintiff on second count, for $11,875. Defendant filed his motion for a new trial as to said count. On March 19, 1918, the court found for defendant on his cross-bill. Plaintiff filed his motion for a new trial as to the cross-bill. All three of the above motions were continued by the court to July 1, 1918, and overruled. The final judgment from which both parties appealed to this court, reads as follows:

"Now at this day come again the above-named parties by their respective attorneys, and, it appearing to the court that heretofore, to wit, on the 15th day of March, 1918, at the close of the plaintiff's case in chief, the court gave a peremptory instruction to the jury that the plaintiff was not entitled to recover on the first count of his petition, and that thereupon plaintiff took an involuntary nonsuit as to said first count, with leave to move to set the same aside, and that thereafter, on the 16th day of March, 1918, the jury duly returned a verdict in favor of the plaintiff upon the second count of plaintiff's petition for the sum of $11,875, judgment to be entered in due course, and that thereafter, on the 19th day of March, 1918, the court duly made its findings on defendant's cross-bill in favor of defendant, finding that plaintiff was indebted to defendant in the sum of $10,069, with 6 per cent, interest from February 24, 1917, and, further, that defendant had a special lien against plaintiff's certificate No. 133 for 250 shares of the common stock of the Dorris Motor Car Company, judgment to be entered in due course, and, it further appearing to the court that thereafter, to wit, on the 19th day of March, 1918, plaintiff filed his motion to set aside said involuntary nonsuit as to said first count and for a new trial thereof, and that thereafter, to wit, on the 20th of March, 1918, plaintiff also filed his motion to set aside the court's said findings on said crossbill and for a new trial thereof, and that on said 20th day of March, 1918, defendant filed his motion to set aside said verdict of the jury and for a new trial thereof, and each of said motions having been by the court duly continued from term to term, by orders duly and properly entered of record, and the court, having heard and considered the said motions, and each of them, and being now fully advised, cloth now this day overrule each and all of said motions, and doth dismiss the said first count of plaintiff's petition, and doth find that the said plaintiff should have and recover of the said defendant, upon and under the second count of the said petition herein, the sum of $11,875, being the damages, by the jurors aforesaid, in form aforesaid, assessed and returned in their said verdict in favor of the plaintiff, together with interest thereon at 6 per cent from the 16th of March, 1918, to this date, amounting to $207.81, and aggregating principal and interest, $12,082.81.

"Wherefore, it is ordered, adjudged and decreed as follows, to wit: That said plaintiff do have and recover against the said defendant the sum of $1,272.81 (being the difference between the amount herein found in favor of the said plaintiff under the second count of his petition, to wit, $12,082.81, and the amount herein found in favor of the defendant on his cross-bill, to wit, $10,810), and also his costs and charges herein expended and incurred, and that execution issue therefor; and it is further ordered, adjudged, and decreed that defendant's said lien upon plaintiff's said certificate No. 136 for 250 shares of the common stock of the Dorris Motor Car Company aforesaid be, and the same is hereby, satisfied and for...