David v. B. L. Fry Mfg. Co.

• Decision Date: 07 June 1921
• Docket Number: No. 16703.,16703.
• Citation: 236 S.W. 1103,209 Mo. App. 134
• Parties: DAVID v. B. L. FRY MFG. CO.
• Court: Missouri Court of Appeals

236 S.W. 1103

209 Mo. App. 134

DAVID v. B. L. FRY MFG. CO.

No. 16703.

St. Louis Court of Appeals. Missouri.

June 7, 1921.

Rehearing Denied February 2, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by J. H. W. David against the B. L. Fry Manufacturing Company. From judgment for plaintiff, defendant appeals. Reversed.

Lewis & Rice, of St. Louis, for appellant. 0. J. Mudd, of St. Louis, for respondent.

BECKER, J.

Plaintiff's petition is in three counts. The first count states a cause in equity, its object being the reformation of the contract on which the action is based, which contract in effect was the employment of the plaintiff by the defendant as assistant superintendent of its factory, upon consideration of the plaintiff purchasing 25 shares of the capital stock of the defendant company for the price of $2,500. Plaintiff alleged that the written agreement entered into omitted by mutual mistake of the parties one of the terms agreed upon, to the effect that plaintiff, at his option, within the first 6 months of his employment under the agreement, was to have the right to resign his position as assistant superintendent, return the 25 shares of stock, and receive back his purchase money.

Upon the hearing of the case a decree resulted which reformed the said contract as prayed in plaintiff's first count. The action of the learned trial court in this regard is not questioned here.

Plaintiff's second and third counts in fact set up but one cause of action at law in two counts. By the second count plaintiff seeks to enforce the contract as reformed, alleging that plaintiff had, within six months after he had entered the employment of the defendant under the said written contract, resigned his position, tendered back his 25 shares of stock to the defendant, and requested the return of the purchase money, which defendant however refused to do.

The third count seeks to recover of the defendant the money paid by the plaintiff as the purchase price of the stock, as for money had and received, and without enforcement of the contract, as a contract, on the theory that the defendant, through its officers, had wrongfully obtained plaintiff's money and should be obliged to repay it.

The judgment entered below, in addition to reforming the contract as prayed in the first count of plaintiff's petition, rendered judgment for the plaintiff on the third count for the sum of $2,500 as for money had and received, on condition, however, that the plaintiff "forthwith, and before entry of judgment," deliver the certificate of stock for 25 shares, properly indorsed by the plaintiff in blank, to the clerk of the court or to the defendant. Thereupon, in due course, defendant appeals.

It appears that the defendant company inserted "the following advertisement in one of the St. Louis daily newspapers:

"Wanted.—Settled man, capable of filling a position as assistant superintendent in St. Louis manufacturing corporation. Must furnish good local references and must invest at least $2,500. * * *"

Plaintiff answered this advertisement, and, after several conferences with the president and the secretary and treasurer of the defendant company, entered into a written contract with the defendant company whereby he was employed as assistant superintendent, upon his purchasing 25 shares of the stock of the company, for which he paid the sum of $2,500 (and for the purposes of this case, since no objection thereto is made here, we will consider the said contract as reformed by the judgment), with the right reserved in plaintiff, within six months after the date of his entering such employment, to resign this said position and return the said stock, whereupon the defendant would repay him the said purchase money. It is conceded that plaintiff did so resign and tender back the stock, but that defendant refused to repay the purchase money.

The record discloses that the contract in question was signed in the name of the defendant company "by H. A. St. Clair, Secretary and Treasurer," but that St. Clair, however, signed at the direction of B. L. Fry, the president of the said company.

The said contract was made and executed on the 30th day of July, 1917, on which date, as a part payment, plaintiff gave a check for $1,000, payable not to the order of the B. L. Fry Manufacturing Company, but to H. A. St. Clair, and thereafter, on August 9, 1917, gave St. Clair another check in the sum of $1,500, also made payable to him. The plaintiff, however, did not receive a certificate for 25 shares of stock on the day the contract was signed, but was given a receipt for the $1,000 paid by check on that day. The said receipt, instead of being signed in the name of the company, was signed by H. A. St. Clair. Some days later the plaintiff was given 4 or 5 certificates, aggregating 25 shares of the capital stock of the defendant company. Several of the certificates were in the name of B. L. Fry, and at least one in the name of H. A. St. Clair. These certificates were duly indorsed in blank. It was perhaps a month later that the plaintiff, upon surrendering these said certificates, obtained one certificate for...