Crenshaw v. Columbian Mining Company
| Decision Date | 06 March 1905 |
| Citation | 86 S.W. 260,110 Mo.App. 355 |
| Parties | G. L. CRENSHAW, Respondent, v. COLUMBIAN MINING COMPANY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court.--Hon. W. W. Graves, Judge.
Cole Burnett & Moore for appellant.
(1) Was the conveyance of shares 25, 26 and 27 from D. C. Brandon to plaintiff, G. L. Crenshaw, void, the consideration being payment of an election bet or wager? The answer is yes. R. S 1899, secs. 2211, 3426, 3430; Schropshire v Glascock, 4 Mo. 536; see authorities on 2 and 3 below. (2) Does section 3431 of the statutes (stakeholder section) requiring suit to recover to be brought in three months deprive a defendant of the defense that the contract was a prohibited one, when such defense is presented at a later date, that is, after the three months provided by section 3432 has expired? The answer to this question is no. Richter v. Merrill, 84 Mo.App. 150, 154; Roff v. Harmon, 64 S.W. 755; Spurlock v. Dougherty, 81 Mo. 171; Mason v. Crowder, 85 Mo. 526; Buckingham v. Fitch, 18 Mo.App. 91; Morris v. White, 83 Mo.App. 194; Hayden v. Little, 35 Mo. 418; Williamson v. Bailey, 78 Mo. 636; see authorities under 3 below. (3) Will a court aid the winner in a gambling contract or on a wager to consummate or establish a right to his winnings, he being unable to realize upon or to establish such right and to enjoy the full fruits of such gambling contract or wager without the aid of a court? The answer to this question is no. Hayden v. Little, 35 Mo. 418; Woolfolk v. Duncan, 80 Mo.App. 427; Morris v. White, 83 Mo.App. 194, 196; Keim v. Vette, 167 Mo. 402; Ulman v. Fair Ass'n, 167 Mo. 273; Sprague v. Rooney, 104 Mo. 349; Keating v. Kansas City, 84 Mo. 419; Loan Ass'n v. Cass L. & C. Co., 138 Mo. 394; Swing v. Cider & Vinegar Co., 77 Mo.App. 391; Gibbs v. Gas Co., 130 U.S. 396, 32 L.Ed. 979; Snoddy v. Bank (Tenn.), 7 L. R. A. 705; Kellogg v. Howes (Cal.), 6 L. R. A. 588; Harvey v. Merrill (Mass.), 5 L. R. A. 200; Sprague v. Warren (Neb.), 8 L. R. A. 678; Irwin v. Williar, 110 U.S. 499, 28 L.Ed. 225; State v. Burgdoerfer, 107 Mo. 22-23; Buckingham v. Fitch, 18 Mo.App. 91; Rozelle v. Bank, 141 Mo. 40; Shafer v. Pinchback, 133 Ill. 403. And there is nothing new in the doctrine: 1 Pomeroy, Eq., sec. 402, p. 547; 2 Pomeroy, Eq., sec. 940, p. 1350; Adams, Eq. (8 Ed.), 174; 1 Story, Eq., 301; Hooker v. DePaloss, 28 Ohio St. 257; Skinner v. Henderson, 10 Mo. 205; Herman v. Jencher, 15 Q. B. 561. Illustrative of the above points, 1, 2 and 3, we here copy paragraphs from the reports above cited: "The cases in this country are uniform in declaring the principle that if a note or other contract be made in consideration of an act forbidden by law, it is absolutely void and the illegality of the contract will constitute a good defense at law as well as in equity." Swing v. Cider & Vinegar Co., 77 Mo.App. 398. State v. Burgdoerfer, 107 Mo. 23. "The answer of an indorser on a note setting up that the indorsement had been made as a bet on a horse race presented a good defense, though it was in effect an attempt to recover the property lost on the race and was filed more than ninety days after the debt was paid. Roff v. Harmon, 64 S.W. 755; Hayden v. Little, 35 Mo. 418; Morris v. White, 83 Mo.App. 194; Richter v. Merrill, 84 Mo.App. 150; Loan Assn. v. Cass, etc., 138 Mo. 394; Woolfolk v. Duncan, 80 Mo.App. 421; Ordelheide v. Railroad, 80 Mo.App. 368; Morris v. White, 83 Mo.App. 197; State ex rel. v. Ins. Co., 152 Mo. 1; Karnes v. Ins. Co., 144 Mo. 413; Bank v. Farris, 77 Mo.App. 186; Miles v. Withers, 76 Mo.App. 87; State ex rel. v. Railroad, 153 Mo. 157; Cravens v. Ins. Co., 148 Mo. 583. (2) The court committed error against this defendant in adjudging that this defendant should pay plaintiff the sum of $ 13.65, on the basis that as the Columbian Mining Company, defendant, had on hand in its treasury the sum of $ 152.48; that then plaintiff was entitled to recover from the company the proportion of said sum of $ 152.48 that plaintiff's alleged six shares bears to the sixty-seven shares of the corporate stock of said company outstanding. The court had no power to declare a dividend on the facts in evidence for defendant company, for the plaintiff, or for anybody else. The court went beyond its jurisdiction when it attempted to do so.
Thurman, Wray & Timmonds for respondent.
(1) Where a cause of action embraces branches of equity jurisdiction, courts of equity assume jurisdiction and retain such jurisdiction of the cause throughout, in order that full and complete justice may be done, even where a remedy at law exists. Cabanne v. Lisa, 1 Mo. 682; Janney v. Spedden, 38 Mo. 395; Harper v. Rosenberger, 56 Mo.App. 388; Verdin v. St. Louis, 131 Mo. 26; Humphreys v. Milling Co., 98 Mo. 542; Sutton v. Hayden, 62 Mo. 112; Koch v. Hebel, 32 Mo.App. 103; Sharkey v. McDermott, 91 Mo. 647; Baile v. Ins. Co., 73 Mo. 384; Lingenfelter v. Ins. Co., 19 Mo.App. 264; Reyburn v. Mitchell, 106 Mo. 365; Woodard v. Martin, 106 Mo. 324; Jordan v. Harrison, 46 Mo.App. 172; Morrison v. Herrington, 120 Mo. 665. (2) The transfer and delivery of stock in a corporation by a stockholder, after indorsement thereon, authorizing the transfer on the books of the corporation, passes title of the stock as between the stockholder and transferee, and as against a creditor, if the purchaser demands a transfer of the stock on the books of the corporation, even though its officers fail or neglect to make such transfer. Bank v. Richards, 6 Mo.App. 454; affirmed 74 Mo. 77; Wilson v. Railway, 108 Mo. 588; Ins. Co. v. Goodfellow, 9 Mo. 150; Moore v. Bank, 52 Mo. 379; Spring Co. v. Harris, 20 Mo. 390; Bank v. Durfee, 118 Mo. 442; Halgele v. Store Co., 29 Mo.App. 492. (3) A court of equity will compel a corporation to transfer stock on its books, assigned by one stockholder to another, on the ground that a corporation is a trustee for all its stockholders, and a refusal to transfer such stock is a breach of the duty of such trustee. Keller v. Mfg. Co., 43 Mo.App. 88; Secret Service Co. v. Mfg. Co., 125 Mo. 140; Cushman v. Mfg. Co., 75 N.Y. 365. (4) Before the gaming statute was enacted the property wagered belonged to the winner, but the gaming statute gave the loser, his heirs, executors, administrators and creditors, a right to recover the property lost. R. S. 1899, secs. 3424-3425. (5) The defendant, the Columbian Mining Company, although pleading the gaming contract, does not come within any of the provisions of the statute against gaming, and cannot defeat plaintiff's action by such defense. It is a trustee for the stockholders of the corporation, and it can be of no concern to it, who the stockholders are, how they obtained their stock, whether they paid for it, or it was given to them, its certificates of stock are in a manner quasi-negotiable paper, subject to being transferred at the pleasure of the owner. Bank v. Richards, 6 Mo.App. 461, 74 Mo. 77. (6) If defendant Egger can make the defense that the transfer of the three shares of stock by Brandon to plaintiff is void, under the statute against gaming, it is, by virtue of the statute, authorizing a creditor to set aside such conveyance. We insist that he is not within that statute; that his pleading does not show that he is within the statute; that his pleading and the facts show that he is barred by the limitation of the statute creating such right. The limitation is three months. At the time of his purchase, neither he nor his father, F. Egger, the creditor of Brandon, who was solvent, had the right to set aside the transfer. R. S. 1899, sec. 3432. (7) The right to recover back property that has been lost in gaming is limited to three months, and cannot be revoked afterwards. R. S. 1899, sec. 3432; Connor v. Black, 132 Mo. 150; Cutshall v. McGowan, 98 Mo.App. 705. (8) A purchaser at executtion sale buys only the interest the execution defendant had in the property sold, and acquires no other rights in the property. Rosenberger v. Jones, 118 Mo. 559; Burke v. Seely, 46 Mo. 334; Hagman v. Schaffner, 88 Mo. 24; Freeman on Executions, secs. 301, 335.
This suit was commenced on the 25th of June, 1901. The defendant is a mining corporation with an organized capital of $ 10,000 divided into one hundred shares of the par value of $ 100 each, but thirty-three shares thereof have been cancelled leaving sixty-seven shares representing the present capital stock. Shares Nos. 25, 26 and 27 were issued to one H. C. Brandon. The plaintiff claimed to be the owner of these shares but the defendant company refused to recognize him as such and to permit him to share in its dividends. The defendant, Egger, also claims to be the owner of said shares, basing his title upon a purchase made at a sale under execution issued upon a judgment against said Brandon. This sale and purchase was made after the time that plaintiff claims he became the owner of such stock. The plaintiff admitted that the consideration for the transfer of the sale of the stock by Brandon to himself was a wager on the result of an election. On the 10th day of November, 1896, Brandon, in writing, assigned and delivered the stock to plaintiff. At that time plaintiff was engaged in the business of banking and a Mr. Avery was his bookkeeper, also the secretary of the mining company. Avery knew that plaintiff owned the shares of stock, according to plaintiff's evidence, and that he wanted him, as secretary of the mining company, to transfer them on its books to him. He says he put them in a...
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