Cruse v. Eslinger
| Decision Date | 07 November 1921 |
| Docket Number | No. 14137.,14137. |
| Parties | CRUSE v. ESLINGER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Ray County; Ralph Hughes, Judge.
"Not to be officially published."
Action by John S. Cruse against William Eslinger. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Lavelock & Kirkpatrick, of Richmond, for appellant.
M. M. Milligan and A. M. Clark, both of Richmond, and Jacobs & Henderson, of Kansas City, for respondent.
In 1906 the Farmers' & Traders' Bank of Hardin, Mo., was not in a prosperous condition, and defendant, a stockholder and director therein, and who was thereafter its president for many years, sought out plaintiff and induced him to become cashier, with the idea that plaintiff's ability would enable the bank to prosper. Plaintiff assented to defendant's proposition on the 21st of May, 1906, and was thereupon duly elected as cashier on June 4 of that year, taking charge the next day. From then on the business of the bank greatly increased, and its stock went from $128 per share, its value at the time plaintiff took charge, up to a very much higher figure, though Its precise value in the end is not specifically disclosed by the record. Plaintiff continued as cashier until May 31, 1919, when the bank, still in a flourishing condition, was changed into the Hardin Trust Company, with defendant as its president, as he theretofore had been of the bank, but plaintiff's connection with the institution ceased.
Plaintiff's theory is that the suit is on a verbal agreement plaintiff claims defendant made with him, as an inducement to him to accept the cashiership, that he (defendant) would pay plaintiff, as a bonus, an amount equivalent to the earnings or income on 23 shares of stock in excess of 7 per cent. interest on a valuation of $150 per share, which sum plaintiff was to receive in addition to the salary plaintiff would get from the bank as cashier. The case was tried and submitted on this theory, and plaintiff testified that the "excess" on the 23 shares of stock over and above $150 per share, with 7 per cent. interest thereon, was $3,122.25. The jury returned a verdict for this amount, and the defendant has appealed.
It seems that, at the time plaintiff was besought to take the cashiership, the then cashier, Jenks, owned 47 shares of the bank's stock, but he would not give place to another cashier unless his stock were purchased at $150 per share, which stock, as heretofore stated, was then worth only $128. Plaintiff, being unable or unwilling to buy said 47 shares, declined to accept the position of cashier when defendant first broached the matter to him. Thereupon, according to plaintiff's theory and contention, defendant orally agreed with plaintiff that, if he would take at least 22 of the 47 shares of the Jenks stock and accept the cashiership, defendant, or the undisclosed persons he represented, would carry the remainder of the 47 shares, and would pay plaintiff all of the income thereon in excess of $150 per share and interest thereon at 7 per cent. Whether this means merely the sum which would amount to the dividends accruing and paid on the stock in excess of 7 per cent. on a valuation of $150 per share, or whether it means that the excess was to also include the amount above $150 per share in the value of the stock, is not exactly clear. But plaintiff was to receive said amount from defendant in addition to the $80 monthly salary he was to get from the bank as cashier. There was no time fixed, according to his contention, during which the employment should continue, but it could be terminated at any time, and the amount to be paid by defendant was due whenever plaintiff demanded a settlement. Plaintiff also says he relied upon said agreement, and accepted the cashiership when elected thereto on June 4, 1906. He borrowed enough money to acquire and did purchase 24 shares of the Jenks stock, leaving 23 shares to be carried under the agreement he relies upon. On the 19th of May, 1919, when the bank was about to be changed into a trust company and plaintiff's connection with the bank was about to cease, plaintiff, for the first time, mentioned the agreement to defendant and demanded a settlement.
The evidence in plaintiff's behalf is that, when he demanded a settlement, defendant said he owed plaintiff and would pay him, and thereupon took out his check book, but upon plaintiff saying he had not figured the amount up, but would do so and let defendant know, the latter replaced his check book in his pocket and went out of the bank, saying, "All right; let me know." At the trial defendant denied this, but admitted that when his deposition was taken, and he was asked if this did not happen, he replied, "I couldn't say; I could'nt say." And when asked if he would say it did not happen, he replied, "I don't say it did, and I don't say it didn't." There is also evidence that at another time defendant admitted that he owed plaintiff on 10 shares, but said he didn't think he owed him on any more.
It is conceded on defendant's part that he did seek plaintiff out and urged him to take the cashiership; that defendant and R. L. Macey were appointed a committee by the directors to see plaintiff for that purpose. But the evidence in defendant's behalf denies that he made any such agreement as plaintiff claims. Macey, who was present at the interview with plaintiff, does not say explicitly that no such agreement was made, but only that he has no recollection of anything of the kind. The evidence in defendant's behalf is to the effect that the only agreement made with plaintiff was that he was to be given authority to sell the 23 shares in order to get new blood in the hank, and that, if plaintiff sold them, he was to have all over $150 per share and 7 per cent. interest thereon from date of the agreement; that plaintiff did not sell any of the shares, and therefore he was not entitled to anything on that account. In support of the contention that plaintiff was to sell the 23 shares and keep any overplus, defendant introduced in evidence three written instruments, signed, respectively, by William Eslinger, S. C. Robinson, and R. V. Seward, all being exactly alike, except as to signature, and reading as follows:
At the interview with plaintiff by the defendant and Macey, when plaintiff agreed to become cashier, defendant told Macey to draw up or fix up the agreement made with plaintiff, and Macey drew up the above instruments. Plaintiff, however, says that the instruments, while dated May 21, 1906, the date of the alleged verbal agreement he relies on, were not in fact drawn up, signed, or presented to him until in July or August of that year, after he had accepted the cashiership and had gone into the bank; that when they were thus presented to him by Macey, acting as agent for defendant, he told Macey he would not accept them, because they did not embody the contract, and for Macey to have them changed, and that Macey said, referring to defendant, "He is a man of his word." It is manifest, from defendant's evidence as a whole, that the above instruments were not presented to plaintiff until long after he had performed his part of the contract by accepting the cashiership and going into the bank. Defendant's witnesses are vague and uncertain as to when the instruments were signed or presented to plaintiff, concede that they...
To continue reading
Request your trial
-
Magee v. Mercantile-Commerce Bank & Trust Co.
...performance was not limited to the period fixed by the Statute of Limitations or to what might be considered a reasonable time. Cruse v. Eslinger, 235 S.W. 496; Halsey v. Boomer, 210 N.W. 209; Kincaid Overshiner, 171 Ill.App. 37; Grotte v. Rachman, 207 N.W. 204; Jameson v. Jameson, 72 Mo. 6......
-
Lange v. Baker
...72. See also Porter v. Merrill, 138 Mo. 555, 39 S.W. 798(1); Bond Diamond Co. v. Wilson, Mo.App., 325 S.W.2d 63, 65(1); Cruse v. Eslinger, Mo.App., 235 S.W. 496, 498(3); Heller v. Ferguson, 189 Mo.App. 484, 176 S.W. 1126, 1128(6).4 Porter v. Merrill, 138 Mo. 555, 558, 39 S.W. 798; A. A. Ele......
-
Bering Mfg. Co. v. W. T. Carter & Bro.
...94 S. W. 392; First National Bank v. Glass, 128 Ark. 578, 195 S. W. 15; Ewing v. Schultz (Tex. Civ. App.) 220 S. W. 625; Cruse v. Eslinger (Mo. App.) 235 S. W. 496; Robertson v. Warren, 45 Tex. Civ. App. 584, 100 S. W. 805; National Oil Co. v. Taylor (Tex. Civ. App.) 45 S. W. What we have s......
- Poague v. Mallory