Donaldson Bond & Stock Company v. Houck

• Decision Date: 03 July 1908
• Parties: DONALDSON BOND & STOCK COMPANY, Appellant, v. LOUIS HOUCK
• Court: Missouri Supreme Court

112 S.W. 242

213 Mo. 416

DONALDSON BOND & STOCK COMPANY, Appellant, v. LOUIS HOUCK

Supreme Court of Missouri, First Division

July 3, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Robt. W. Foster Judge.

Affirmed.

T. K Skinker and Wm. R. Donaldson, Jr., for appellant.

(1) (a) The evidence shows without contradiction that defendant promised to pay plaintiff $ 25,000 in bonds and $ 50,000 in stock of a railroad company to be organized by him to build a line of railroad between Cape Girardeau and Perryville in Missouri, if plaintiff would place the bonds of the company at eighty cents on the dollar, so as to enable defendant to build the road, and that plaintiff accepted the offer by placing the bonds. This constituted an executed contract between plaintiff and defendant. It is this contract on which plaintiff sues in the first count. The court found that there was no contract and therein committed error. (b) It is immaterial that plaintiff did not in writing accept defendant's offer and agree to render the service. Lindell v. Rokes, 60 Mo. 249; Allen v Chouteau, 102 Mo. 323; Lancaster v. Elliott, 28 Mo.App. 86; Underwood Typewriter Co. v. Realty Co., 118 Mo.App. 197; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 139; School District v. Sheidley, 138 Mo. 672; Koch v. Lay, 38 Mo. 147; Morse v. Bellows, 7 N.H. 549; Harris v. Stevens, 7 N.H. 464; Lent v. Padelford, 10 Mass. 230; Sharp v. Bates, 102 Md. 344; Railroad v. Scott, 72 Tex. 70; Bishop v. Eaton, 161 Mass. 496; Hooker v. Hyde, 61 Wis. 204; Hutchinson v. Railroad, 37 Wis. 601; Railroad v. Smith, 144 Mich. 235; Story on Contracts (5 Ed.), secs. 380, 390; Cummings v. Clinton County, 181 Mo. 162; Harson v. Pike, 16 Ind. 140; Baker v. Hoag, 7 Barb. 113; Ryer v. Stockwell, 14 Cal. 137; Reif v. Page, 55 Wis. 493; Bank v. Hart, 55 Ill. 62; Wilson v. McClure, 50 Ill. 366. (2) The agreement dated August 2, 1901, between plaintiff and the St. Louis, Cape Girardeau & Southern Railroad Company did not supersede the contract above shown, or release defendant from liability on it, or exonerate him from the duty of paying to plaintiff $ 25,000 in bonds and $ 50,000 in stock of the railroad company, or damages in lieu thereof. Badger Lumber Co. v. Meffert, 59 Mo.App. 437; Powell v. Charless, 34 Mo. 485; Leabo v. Goode, 67 Mo. 126; Snyder v. Kirtley, 35 Mo. 423; Appleton v. Kenyon, 19 Mo. 637; Selby v. McCullough, 26 Mo.App. 72; Jackson v. Bowles, 67 Mo. 610; Mount v. De Haven, 29 Ind.App. 127; Lane v. Collier, 46 Ga. 580; Bank v. Gardiner, 57 Mo.App. 268; Brown v. Croy, 74 Mo.App. 462; Johnson v. Weed, 9 John. 310; Noel v. Murray, 13 N.Y. 167; Tobey v. Barker, 5 John. 68; Glenn v. Smith, 2 Gill & J. 493; Puckford v. Maxwell, 6 T. R. 52; Thornberry v. Thompson, 69 Mo. 481; Pratt v. Morrow, 45 Mo. 406; Russell v. Berkstresser, 77 Mo. 426; Haubert v. Mausshardt, 89 Cal. 433; Witbeck v. Waine, 16 N.Y. 532; Chapman v. Railroad, 146 Mo. 508; Van Vliet v. Jones, 20 N. J. L. 340; Babcock v. Hawkins, 23 Vt. 561; Stamper v. Johnson, 3 Tex. 1; Taylor v. Bank, 5 Leigh 471; Brent v. Richards, 2 Grat. 539; Bowles v. Elmore, 7 Grat. 385; McDaniels v. Robinson, 26 Vt. 316; Keefer v. Zimmerman, 22 Md. 285; Tarr v. Northey, 17 Me. 113; Daughtry v. Boothe, 2 Jones L. (N. C.) 87; Drown v. Forrest, 63 Vt. 557; Lawall v. Roder, 2 Grant's Cases, 426; American Paper Bag Co. v. Van Nortwick, 3 U.S.C. C. A. 274; Illinois Car & Equipment Company v. Linstroth Wagon Co., 112 F. 737; Chitty on Contracts, pp. 658; 665; 1 Beach on Modern Law of Contracts, sec. 453; In re Lemerise, 73 Vt. 304; Gerhart Realty Co. v. Northern Assurance Co., 94 Mo.App. 356; Thatcher v. Dudley, 2 Root 169; Goodrich v. Stanley, 24 Conn. 613; Hall v. Smith, 15 Iowa 584; Munford v. Wilson, 15 Mo. 540; Chrisman v. Hodges, 75 Mo. 413. (3) There was evidence tending to show that defendant employed plaintiff to find for him a purchaser of the Houck roads and the stock of the corporations owning the same; that plaintiff found the purchaser in the Fordyce-Guy-West syndicate and thereby entitled himself to compensation for the service. The court refused plaintiff's instruction predicated upon this evidence and therein committed error. Tyler v. Parr, 52 Mo. 249; Merton v. Case Co., 99 Mo.App. 630; Timberman v. Craddock, 70 Mo. 638; Lipscomb v. Cole, 81 Mo.App. 53; Campbell v. Vanstone, 73 Mo.App. 87; Crone v. Trust Co., 85 Mo.App. 607. (4) The court erred in refusing to allow evidence to be given that the bonds of the St. Louis & Gulf Railway Company received by the syndicate of which defendant was a member, were worth par. Butler v. Murphy, 106 Mo.App. 287.

Eleneious Smith for respondent.

(1) Where a jury is waived and the issues of fact are submitted to the court, all presumptions are in favor of the correctness of the findings of the court upon the question of fact involved. Gaines v. Fender, 82 Mo. 509; Jordan v. Davis, 172 Mo. 608; Friedman v. Kelly, 102 S.W. 1068; Johnson v. Luttman, 88 Mo. 567; Bozarth v. Legion of Honor, 93 Mo.App. 564; Meyer v. Ins. Co., 73 Mo.App. 166. (2) In an action at law tried by the court sitting as a jury, the action of the court upon declarations of law is important only as indicating the theory on which the case was tried. Baumhoff v. Railroad, 171 Mo. 120; Dollarhide v. Mabarry, 125 Mo. 197; Suddarth v. Robertson, 118 Mo. 286; Crescent Planing Mill Co. v. Spilker, 77 Mo.App. 409.

LAMM J. Valliant, P. J., is absent.

OPINION

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 and Ste. Genevieve Railroad Company, which company was then operating a railroad in the State of Missouri; and should cause twenty-five thousand dollars of such bonds and fifty thousand dollars 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 and 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 first 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 first 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 and Ste. Genevieve Railroad Company, whereby the bonds and stock of said St. Louis, Cape Girardeau and 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 seventy-five thousand dollars, 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 and Southern Railroad, the Clarkton Branch of the St. Louis, Kennett and Southern Railroad, the St. Louis, Morehouse and Southern Railroad, the Pemiscot Southern Railroad, the Chester, Perryville and Ste. Genevieve Railroad, Houck's Missouri and Arkansas Railroad, the Cape Girardeau, Bloomfield and Southern Railroad, the St. Louis, Cape Girardeau and...