Dunn v. Oil Development Co.

• Decision Date: 10 October 1927
• Docket Number: No. 26256.,26256.
• Citation: 1 S.W.2d 127
• Parties: THOMAS DUNN, Appellant, v. OIL DEVELOPMENT COMPANY.
• Court: Missouri Supreme Court

1 S.W.2d 127

THOMAS DUNN, Appellant, v. OIL DEVELOPMENT COMPANY.

No. 26256.

Supreme Court of Missouri. Division No. 2.

October 10, 1927.

Appeal from Circuit Court of City of St. Louis. — Hon. Wilson A. Taylor, Judge.

AFFIRMED.

S. Mayner Wallace for appellant.

(1) The evidence, by the defendant company itself, showed, as a matter of law, that it sold its stock to the plaintiff. When that situation arose, the trial court should, under the pleadings, have directed a verdict and judgment for the plaintiff; and the plaintiff-appellant is now entitled to a judgment in this court. Sec. 1514, R.S. 1919; Block v. Fidelity & Guaranty Co., 290 S.W. 442. (2) If there had remained any issue of fact, under the evidence, upon the question whether the stock sold to plaintiff was the company's stock or Edward W. Uhri's stock, the trial court erred in the giving of its Instruction 1, because same entirely omitted the decisive and all important element of intention (the bona fides — good faith — actual ownership — purpose) involved in the alleged prior issuance of said stock to said Uhri. If it be suggested that the plaintiff should have requested an instruction, covering said element, the answer is that he, having made and wishing to stand upon his motion for a peremptory verdict, could not have done so without waiving his said motion. Everhardt v. Bryson, 244 Mo. 507. (3) The original ledger sheets, of the Liberty Central Trust Company, disclosing that, on July 1, 2 and 3, 1919, Edward W. Uhri had only $303.65 to his credit in bank, were erroneously excluded from the evidence. Bentley v. Bentley, 185 Mo. App. 593; Robinson v. Smith, 111 Mo. 205. (4) The original ledger sheets, of the Liberty Central Trust Company, disclosing that Edward W. Uhri and the Oil Development Company were, on July 3, 1919, each debited and credited, in their bank accounts, with the sum of $10,000 were erroneously excluded from the evidence. Cases last cited.

Fordyce, Holliday & White, Elmer C. Adkins, Bennett C. Clark and Walter R. Mayne for respondent.

(1) The trial court did not err in refusing the peremptory instruction requested by the plaintiff, because where different conclusions may be reached by fair and impartial jurors on a disputed issue of fact the case should be submitted to the jury. Gannon v. Gaslight Co., 145 Mo. 502; McCall v. Atchley, 194 S.W. 714; State ex rel. v. Ellison, 226 S.W. 577; Davis v. Springfield Hospital, 218 S.W. 697; Diehl v. Fire Brick Co., 299 Mo. 660; Staehlin v. Major, 199 S.W. 428. (2) Where the allegations in plaintiff's petition are denied by defendant's answer, and plaintiff, who has the burden of proof, relied on oral testimony, which was not admitted to be true, the court properly refused a directed verdict for the plaintiff, as the credibility of the witnesses, though no countervailing evidence was offered, was for the jury to pass on. Bryan v. Wear, 4 Mo. 106; Gannon v. Gaslight Co., 145 Mo. 502; Milliken v. Thyson Com. Co., 202 Mo. 637; Staehlin v. Major, 199 S.W. 427. (3) The court properly excluded from evidence the ledger sheets of the Liberty Central Trust Company, because no proper foundation was laid for their introduction, viz., there was no showing that the records were accurate or clear and made in the usual course of business, or that the man who made the entries was not available as a witness. 22 Cyc. 875, par. 1057; Mann v. Sand Co., 211 Mo. App. 256; Security Printing Co. v. Ins. Co., 263 S.W. 455; Ridenour v. Mines Co., 164 Mo. App. 576; Reineke v. United States, 278 Fed. 724; Gordon & Koppel Clothing Co. v. Railroad Co., 285 S.W. 755.

HENWOOD, C.

On May 12, 1922, Thomas Dunn filed suit in the Circuit Court of the City of St. Louis against the Oil Development Company and William C. Uhri and Edward W. Uhri, as agents of said company, for the recovery of $10,000, in damages, alleging, as the basis of his suit, that on and prior to July 3, 1919, within the State of Missouri, he was solicited and persuaded by defendants to buy one hundred shares of the capital stock of said company for the sum of $10,000, and that, without his knowledge at the time, neither said company nor its said agents had complied with the provisions of the Act of 1913, relating to domestic and foreign investment companies, commonly known as the "Blue Sky Law," and, therefore, were not lawfully authorized to sell stock in said company or to otherwise transact business for said company in this State. At the time of filing his suit, plaintiff caused to be attached certain cash funds of said company on deposit in the Liberty Central Trust Company of St. Louis. Prior to the trial plaintiff dismissed as to the defendant William C. Uhri. At the close of plaintiff's case in chief the court sustained a demurrer as to the defendant Edward W. Uhri, and thereupon plaintiff took an involuntary nonsuit as to said defendant. The jury found in favor of the defendant Oil Development Company, and the plaintiff, after first moving for a new trial and then for a judgment in his favor, without avail, was allowed an appeal to this court.

Plaintiff's petition, omitting all formal parts, reads as follows:

"Plaintiff, Thomas Dunn, by attorney, states that the defendant, Oil Development Company, is a corporation organized and existing under the laws of the State of Delaware, and as such that said corporation, at all times herein referred to, was attempting and undertaking to engage, and was engaging, within the State of Missouri, in the carrying on of the business of an oil development company and of a foreign investment company without having first qualified or attempted to qualify so to do under the laws of Missouri (particularly the Act of the General Assembly of Missouri approved on April 7, 1913, and commonly known as the "Blue Sky Law") prescribing the conditions upon which foreign corporations may be licensed to do or carry on business in Missouri and permitted to sell such company's capital stock within this State; and plaintiff also states that, at all such times, the defendants, William C. Uhri and Edward W. Uhri, were stockholders in and agents of and for said corporation, but that neither of said individual defendants had registered with the Bank Commissioner of this State or otherwise attempted to comply with the provisions of the said act.

"Plaintiff states that on prior to the third day of July, 1919, within the State of Missouri, the defendants solicited and persuaded this plaintiff to invest the sum of ten thousand dollars in the capital stock of said company, and this plaintiff, then reposing confidence in said individual defendants and at that time not knowing that none of said defendants had or possessed no lawful authority to issue, sell or otherwise dispose of said stock within this State, did, on said day, pay over said sum of money for such investment to said defendants, who, thereupon, in consideration thereof, made and delivered to plaintiff a certain certificate (No. 15) of said company for one hundred shares of no par value, of the capital stock thereof.

"Plaintiff further states that he has offered and that he continues to offer to return to said defendants the said certificate; that, by reason of the facts set forth herein, he has been damaged by said defendants to the amount of the sum of money stated; and that he has demanded of said defendants the return of said money, no part of which has been restored to him by either of said defendants.

"Wherefore, plaintiff prays judgment against said defendants, and each of them, for ten thousand dollars, together with interest thereon at the rate of six per centum per annum and costs."

The trial answer of the defendant Oil Development Company consisted of a general denial only. Its original answer contained, in addition to a general denial, three special defenses: first, that the Act of 1913, commonly known as the "Blue Sky Law," was unconstitutional; second, that the shares of stock purchased by plaintiff were issued to and owned by Edward W. Uhri, and were by him sold to plaintiff; third, that, by reason of plaintiff's acts in connection with the purchase of said shares of stock and his knowledge of and participation in the business affairs of said company from July 3, 1919, until May 12, 1922, he was estopped from repudiating the purchase of said shares of stock. A demurrer by plaintiff as to all of said special defenses was sustained.

At the beginning of the trial objection was made to the introduction of any evidence for the reason that plaintiff's petition did not state a cause of action and for the further reason that the Act of 1913 (Blue Sky Law) was unconstitutional. The court overruled this objection; likewise, the demurrers to the evidence offered at the close of plaintiff's case in chief and at the close of all of the evidence. However, the verdict and judgment below being for the defendant Oil Development Company, the question of whether plaintiff's petition states a cause of action, and the ruling of the trial court in sustaining plaintiff's demurrer to the special defenses contained in said defendant's answer, and other rulings adverse to said defendant, are not before us on this appeal, and, therefore, will not be considered.

Under the pleadings and the theory of trial adopted by both sides, the sole issue before the trial court and jury was whether the shares of stock in question belonged to the Oil Development Company and were sold to plaintiff by the company, through its officers and agents, or whether said shares of stock were owned by Edward W. Uhri and were sold to plaintiff by him as an individual stockholder. The parties, however, do not agree as to the legal effect of the evidence. On the issue of fact, above stated, plaintiff contends that the evidence as a whole or the evidence of the defendant establishes his right of recovery as a matter of law. Aside from the question of plaintiff having any legal basis of recovery under...