Field v. National City Bank of St. Louis

• Decision Date: 19 November 1938
• Docket Number: 34338
• Citation: 121 S.W.2d 769,343 Mo. 419
• Parties: George H. Field v. The National City Bank of St. Louis, a Corporation; E. A. Schmid and Arthur Anderson, Defendants-Appellants, W. M. Stone, Defendant
• Court: Missouri Supreme Court

121 S.W.2d 769

343 Mo. 419

George H. Field v. The National City Bank of St. Louis, a Corporation; E. A. Schmid and Arthur Anderson, Defendants-Appellants, W. M. Stone, Defendant

No. 34338

Supreme Court of Missouri

November 19, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Fred E Mueller, Judge.

Reversed and remanded.

Bryan Williams, Cave & McPheeters and Jeffries, Simpson & Plummer for appellants.

(1) The printed abstract of the record filed in this case is amply sufficient to warrant a review of all of the instructions. Supreme Court Rule 6; Grant v. Knox, 227 S.W. 662; Garrett v. Kansas City Coal Min. Co., 111 Mo. 282; Brand v. Cannon, 118 Mo. 598. (2) The denials in the answers were not overcome by the affirmative defenses. Cohn v. Lehman, 93 Mo. 583; Nelson v Brodhack, 44 Mo. 598; Patrick v. Bonville Gas Light Co., 17 Mo.App. 465; Cavitt v. Tharp, 30 Mo.App. 134; Peoples Bank v. Stewart, 136 Mo.App. 35; May v. Burk, 80 Mo. 679; Schuchman v. Heath, 38 Mo.App. 282. (3) The plaintiff is not entitled to recover for the loss of property unless the loss was the result of some unlawful act of one or more of the defendants. Darrow v. Briggs, 261 Mo. 277; McCarty v. Hemker, 4 S.W.2d 1092.

Orla M. Hill and A. G. Schumacher for respondent.

(1) Under the pleadings and the evidence the plaintiff is entitled to recover his loss occasioned by the acts of the conspiring defendants, or either of them, committed in furtherance of the unlawful conspiracy, whether or not the acts themselves were lawful or unlawful when taken alone, the purpose of the conspiracy being unlawful and fraudulent. Lohse Patent Door Co. v. Fuelle, 114 S.W. 997; Darrow v. Briggs, 261 Mo. 244; Harleson v. Tyler, 281 Mo. 383; Clarkson v. Laiblan, 161 S.W. 660; Carter v. Oster, 112 S.W. 995; Hopkins v. United States, 171 U.S. 595. (a) Even if the acts of defendants could have been lawfully done by one defendant acting alone, when two or more of the defendants conspired to deprive the plaintiff of his property and the acts in pursuance of such conspiracy did deprive plaintiff of his property, it was an unlawful conspiracy. Lohse Patent Door Co. v. Fuelle, 114 S.W. 997; Clarkson v. Laiblan, 161 S.W. 660; Carter v. Oster, 112 S.W. 995. (b) The unlawful conspiracy of defendants was properly proven by the circumstances and acts of the conspirators. Hart v. Hicks, 129 Mo. 99; State v. Brown, 8 S.W.2d 49. (2) Instruction 1 requested by plaintiff should not be reviewed on this appeal for the reasons that the appellants have not complied with the rules of this court, in that appellants have failed to serve and file an abstract containing the testimony of witnesses in the narrative of the witnesses. Supreme Court Rules 6, 11, 13; Sec. 1028, R. S. 1929; Euler v. State Highway Comm., 55 S.W.2d 719; Fronk v. Fronk, 159 Mo.App. 543; Bondurant v. Raven Coal Co., 25 S.W.2d 566; Brand v. Connon, 118 Mo. 595. (a) That part of it authorizing a verdict for the plaintiff upon a finding that the representations recited therein had been fraudulently made, was in conformity with and fully warranted by the petition. McCarty v. Hemker, 4 S.W.2d 1092; Sec. 801, R. S. 1929. (b) The whole of Instruction 1 does not authorize a recovery by plaintiff on either of two inconsistent theories. It does authorize a recovery by plaintiff on the one theory and finding by the jury that the acts of defendants in furtherance of an unlawful conspiracy fraudulently induced plaintiff to part with his property, to his damage. (3) If the jury should have been instructed as to diminution of damages and the defendants did not ask such an instruction they cannot now complain. Kamer v. M., K. & T. Ry. Co., 32 S.W.2d 1075, 326 Mo. 792; Moran v. Atchison, T. & S. F. Ry. Co., 48 S.W.2d 881; Carlton v. Stonek, 38 S.W.2d 505, 225 Mo.App. 646.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This case, recently reassigned to the writer, is an action for damages (first count on which case was submitted) for value of certain property claimed to have been wrongfully obtained from plaintiff by defendants. After the court sustained a demurrer to the evidence as to the second count for malicious prosecution, plaintiff took an involuntary nonsuit but has not appealed. Plaintiff obtained verdict and judgment for $ 24,240 on the first count against all defendants, except Stone (whose demurrer to the evidence was sustained), and they have appealed.

Plaintiff raised the question of the sufficiency of defendants' abstract of the record and moved for dismissal. An opinion was adopted, at our May, 1937, term, dismissing the appeal which noted that defendants made "an assignment that the court erred in refusing a demurrer to the evidence at the close of the whole case;" and held that the appeal could not be considered because all of the evidence was not set out in proper form. Thereafter, a motion for rehearing was sustained and, after permitting defendants to file the original bill of exceptions for inspection, the case was reargued on the merits at the January, 1938, term. We have decided after comparison of the original bill with defendants' abstract that, while it is not sufficient for a review on the assignment of refusing the demurrer to the evidence, it is sufficient under our rules 6 and 13 for review of the trial court's action in giving instructions. Accordingly our review will be limited to a determination of the correctness of instructions submitting the case.

Plaintiff's petition (first count) alleged that on January 1, 1926, plaintiff was the owner of 1848 1/2 shares of no par value stock of the Republic Finance Corporation, which corporation was engaged in buying and selling negotiable instruments and securities, and in lending money; that the reasonable market value of this stock was $ 20 per share; that plaintiff also owned 12 lots in Wood River, Illinois, which were of the reasonable market value of $ 6600; that plaintiff owned an equity in a lot in St. Louis, Missouri, the reasonable value of this equity being $ 1000; and that the defendant, National City Bank, at all times concerned held notes and collateral notes of the Republic Finance Corporation aggregating the approximate sum of $ 80,000. Plaintiff further alleged that, prior to the transactions upon which he bases his suit, he was president of the Republic Finance Corporation and drew a salary of $ 7200 per year; that on January 1, 1926, there was a suit pending against the Republic Finance Corporation wherein one C. J. Gonterman sought to recover more than $ 100,000 for alleged usurious interest; that on May 12, 1926, the defendants and the directors of the Republic Finance Corporation fraudulently conspired together for the purpose of unlawfully acquiring control of the assets of the Republic Finance Corporation, and in order to deprive plaintiff of his position as president, and for the purpose of wrongfully depriving plaintiff of his property for the use and benefit of the defendants; that in pursuance of said conspiracy, defendants Schmid (vice-president of the City National Bank) and Anderson (who was alleged to be a representative of the Bank) called at the office of the Republic Finance Corporation when plaintiff and the directors were engaged in holding a directors' meeting, and falsely represented to plaintiff that his continuance as president and director of the Republic Finance Corporation, during the Gonterman litigation, would not be for the best interest of the corporation; that Schmid and Anderson further represented to plaintiff that upon receipt of his resignation as president and director, the board would fill the vacancy by electing Anderson director and president; that defendants further falsely represented that as soon as the litigation was ended Anderson would resign as president and director, and plaintiff would again be elected director and president; that Schmid falsely represented that said bank was demanding that plaintiff resign as president and director of the Republic Finance Corporation, and that Anderson be elected director and president during said litigation, so that Anderson would be in a position to protect the bank; and that he, plaintiff, relied upon these representations, was ignorant of the alleged conspiracy, resigned as president and director of the Republic Finance Corporation, and the board elected Anderson to fill the vacancy on the board and as president.

Plaintiff further alleged that on May 22, 1926, Schmid and Anderson, in furtherance of the conspiracy, represented to plaintiff that in their opinion, the interest of the Republic Finance Corporation could be best served, and that the National City Bank insisted that plaintiff grant to Anderson the sole authority to vote plaintiff's stock until the litigation was terminated, and that plaintiff, still ignorant of the conspiracy and still relying upon the truth of the representations, entered into a written contract with Anderson whereby plaintiff endorsed and delivered to Anderson all of his stock certificates evidencing his ownership of the 1848 1/2 shares, and granted to Anderson the sole authority to vote this stock. Plaintiff further alleged that on May 26 1926, Schmid and Anderson, in furtherance of the conspiracy, represented to plaintiff "that the defendant National City Bank was afraid that plaintiff might be indebted, to the Republic Finance Corporation, and was afraid that such indebtedness, unless protected, might depreciate the chance of the bank to recover the full amount of the debt owing to it by the said Republic Finance Corporation;" that Schmid and Anderson then persuaded plaintiff to engage in a plan to protect the Republic Finance Corporation "against any such indebtedness as might be found to exist;" that plaint...