Plaintiff and defendant having had negotiations as to the sale of stocks and bonds of a projected railroad, and plaintiff having agreed to find a purchaser therefor, a written agreement was made, reciting that it was entered into between the railroad company, a corporation, and plaintiff company; that the corporation was constructing a railroad between certain termini, and for means to carry out the project authorized plaintiff to sell for it certain described bonds, which plaintiff did sell to the Missouri Trust Company; that the contract had been delivered and accepted, both by the railroad company and the trust company; that plaintiff had carried out the contract of sale, and fulfilled its obligation entitling it to compensation for services consisting of a transfer to plaintiff of a certain proportion of the bonds, etc.; and that if the trust company failed to carry out this contract, the bonds delivered to plaintiff should be returned to the railroad company. The contract was signed and attested by the seal of the railroad company by defendant, its president, etc., and was subsequently modified, so as to require the railroad company to give plaintiff the railroad's notes for all coupons maturing on bonds delivered to plaintiff, etc. Held, that such agreement was the written contract between the railroad company and plaintiff for plaintiff's services, and not a mere order for bonds, which the railroad company and defendant personally had previously agreed to transfer to plaintiff under a former contract.
4. BROKERS — RIGHT TO COMMISSIONS — PROCURING OF SALE.
Where plaintiff was not the procuring cause of the sale of defendant's system of railway to a syndicate, plaintiff was not entitled to commissions on such sale.
5. APPEAL AND ERROR — PREJUDICE.
Where defendant was not liable on the cause of action alleged, the exclusion of evidence, with reference to plaintiff's damages, was without prejudice.
Appeal from St. Louis Circuit Court; Robt. W. Foster, Judge.
Action by Donaldson Bond & Stock Co. against Louis Houck. Judgment for defendant, and plaintiff appeals. Affirmed.
Thos. K. Skinker and Wm. R. Donaldson, for appellant. Eleneious Smith, for respondent.
LAMM, J.
Plaintiff is a domestic corporation, doing business in St. Louis as a buyer and seller of bonds, stock, and other securities, to wit, a broker. Defendant is a railroad builder and promoter living in Cape Girardeau. This is an action to recover the aggregate sum of $175,000, for services alleged to have been rendered defendant personally in plaintiff's capacity as broker. The petition is in two counts, as follows: "The plaintiff states that it is a corporation, organized and existing under the laws of the state of Missouri concerning business corporations, and authorized by its charter to negotiate loans of money and to sell bonds and corporate stocks; that in the year 1900 the defendant was desirous of building a railroad in the state of Missouri, between the city of Cape Girardeau, in the county of Cape Girardeau, and the city of Perryville, in the county of Perry, but defendant was without the means of building the same; that thereupon defendant proposed to plaintiff a plan, whereby defendant would be enabled to build said railroad, as follows: That defendant should cause a railroad company to be organized for the purpose of building the same, and should cause stock and bonds to be issued by said company, and should cause the bonds to be guaranteed by a railroad corporation organized under the laws of the state of Missouri, known as the Chester, Perryville & Ste. Genevieve Railroad Company, which company was then operating a railroad in the state of Missouri, and should cause $25,000 of such bonds and $50,000 of such stock to be given to the plaintiff, provided plaintiff would negotiate a sale of other bonds and stock of said company for money to be used by defendant and the company so to be organized in building said railroad. Plaintiff states that plaintiff accepted defendant's said proposal, and thereafter defendant caused a corporation to be incorporated for the purpose of building said railroad, known as the St. Louis, Cape Girardeau & Southern Railroad Company; that thereupon plaintiff negotiated a sale of bonds and stock of said railroad company to the Missouri Trust Company, and procured said trust
company to agree, in writing, to take such bonds and stock of said railroad company, and to pay for them in installments as the work of constructing said railroad should progress, provided that the said company should complete said railroad on or before the 1st day of July, 1902; and said railroad company, by the same agreement, on its part agreed to deliver to said trust company its said bonds and stock to be so paid for, and agreed to construct its said railroad, and to complete the same by the 1st day of July, 1902. Plaintiff states that the defendant has at all times been the controlling spirit in the enterprise of building said railroad, and has at all times managed the same through persons put into said company, as its stockholders, directors, and officers, by his advice and influence, and that he has at all times been the real owner of said company; and that defendant and said railroad company have not built said railroad or any part thereof, and have abandoned the scheme of building the same, and have not caused said bonds to be guaranteed by the Chester, Perryville & Ste. Genevieve Railroad Company, whereby the bonds and stock of said St. Louis, Cape Girardeau & Southern Railroad Company have never attained any value, and that defendant has never caused any of such bonds or stock to be delivered to the plaintiff, wherefore plaintiff says that it is damaged in the sum of $25,000, for which sum, with costs, it prays judgment. For another and further cause of action plaintiff states that heretofore, to wit, in the fall of the year 1901, the defendant, being the holder, legal and equitable, of all the stock in certain railroad corporations then building, owning, and operating a system of railroads in Southeast Missouri, known as the St. Louis, Kennett & Southern Railroad, the Clarkton Branch of the St. Louis, Kennett & Southern Railroad, the St. Louis, Morehouse & Southern Railroad, the Pemiscot Southern Railroad, the Chester, Perryville & Ste. Genevieve Railroad, Houck's Missouri & Arkansas Railroad, the Cape Girardeau, Bloomfield & Southern Railroad, the St. Louis, Cape Girardeau & Southern Railroad, and other railroads, all commonly called the Houck Roads, employed the plaintiff to find for him a purchaser of said railroads, and the stock of the said railroad corporations, and agreed to pay plaintiff a reasonable consideration if he would find such a purchaser; that plaintiff proposed the purchase of said railroads and stock to several persons, among whom was one Samuel W. Fordyce; that said persons took up and considered said proposals, and negotiated with plaintiff concerning them, and eventually the said Fordyce, in consequence of said proposals, and acting upon them, concluded a negotiation with plaintiff and defendant, whereby he purchased said roads and stocks for himself and others, at a large price, to wit, $2,000,000 and more; that defendant has refused to pay plaintiff for its service in finding for him said purchaser; that the service so rendered by plaintiff to defendant was reasonably worth $100,000, wherefore plaintiff prays judgment against defendant for the sum of $100,000, with its costs." The answer was a general denial.
The trial was without the aid of a jury. Plaintiff asked two declarations of law — the first on the first, and the second on the last count. The court gave the first and refused the second. These declarations follow: "(1) The court declares the law to be that if the court shall find from the evidence that defendant planned to build a railroad between the cities of Cape Girardeau and Perryville in Missouri, though the instrumentality of a railroad company to be incorporated for that purpose, and, in order to enable him to carry out his said plan, employed the plaintiff to negotiate and sell bonds and stock of the company so to be incorporated, and, for services to be rendered in making such negotiation and sale, agreed to pay and deliver to plaintiff $25,000 of the bonds and $50,000 of the stock of such company, and if the court shall further find that the defendant did cause a railroad company to be incorporated for said purpose, by the name of the St. Louis, Cape Girardeau & Southern Railroad Company, and thereafter plaintiff did negotiate a contract with the Missouri Trust Company of St. Louis, whereby said trust company did agree to take and pay for bonds and stock of said company on terms approved by defendant, and if the court shall further find that, among other things, it was provided by said contract that the bonds to be issued by said railroad company should be secured by a first mortgage on all of the property of said company, and also by the guaranty of the Chester, Perryville & Ste. Genevieve Railroad Company, a corporation then owning a railroad in Missouri, and also by a second mortgage on the property of the latter company, and that the money should be paid by said trust company for...
