Fine v. Hornsby

• Decision Date: 10 April 1876
• Parties: JOSHUA FINE, Appellant. v. D. C. HORNSBY, Respondent.
• Court: Missouri Court of Appeals

2 Mo.App. 61

JOSHUA FINE, Appellant.

v.D. C. HORNSBY, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 10, 1876.

1. Shares of stock in a corporation are goods, wares, and merchandise, within the meaning of the statute of frauds, so as to require a note or memorandum in writing to validate a sale.

2. A having purchased shares of B, an agreement that the transaction shall be considered as canceled cannot be made the foundation of an action by A against B, as for a resale of the shares to B.

APPEAL from St. Louis Circuit Court.

Affirmed.

Marshall & Barclay, for appellant, cited: Chitty on Con. (10th Am. ed.) 409, 419, 422; Bradley v. Holdsworth, 3 M. & W. 422; Kemble v. Mitchell, 11 A. & E. 205; Watson v. Sprathy, 10 Exch. 222; Fine v. Rogers, 15 Mo. 315; Kerr v. Bell, 44 Mo. 120; Story on Sales (3d ed.), sec. 277; Bass v. Walsh, 39 Mo. 199; Leonard v. Davis, 1 Black, 476; Glasgow v. Nicholson, 25 Mo. 30; Edan v. Dudfield, 1 Q. B. 302; Means v. Williamson, 37 Me. 536; Handlette v. Tallman, 14 Me. 400; Barrett v. Goddart, 3 Mason, 107; Williams v. Evans, Admr., 39 Mo. 201, Houghtaling v. Ball, 19 Mo. 84; Phillips v. Brestollé, 2 B. & C. 511; 9 Eng. Cr. Law Rep. 162; Bass v. Walsh, 39 Mo. 192, 198; Dyer v. Libby, 61 Me. 45.

Dryden & Dryden, for respondent, cited: Tisdale v. Harris, 20 Pick. 9; North v. Forrest, 15 Con. 400, 404; Gadsder v. Lance, 1 McMull. Eq. 91; Life Ins. Co. v. Cole, 4 Fla. 359; Baldwin v. Williams, 3 Metc. 367, 368; 3 Pars. on Con. (5th ed.) 49, 50, and note; Colvin v. Williams, 3 Har. & J. 38; Schouler on Pers. Prop. (1st ed.) 39, 40; Bouv. L. Dic., title Goods; United States v. Moulton, 5 Mason, 537; Gooch v. Holmes, 41 Me. 523; Eastern R. R. Co. v. Benedict, 10 Gray, 212; Riggs v. Magruder, 2 Cranch C. Ct. 143; White, Exr., v. Salisbury, 33 Mo. 153; Lillywhite v. Devereux, 15 M. & W. 285, 290; Glasgow v. Nicholson, 25 Mo. 30; Bass v. Walsh, 39 Mo. 197; Stindler v. Houston, 1 Comst. 261; Archer v. Zele, 5 Hill, 205; Ely v. Ormsby, 12 Barb. 570.

LEWIS, J., delivered the opinion of the court.

The petition alleged, in substance, that in the year 1869 plaintiff purchased from defendant an interest of one-fourth in the Missouri Lime Company, and paid therefor the sum of $2,000. That afterwards, in October or November, 1869, by a verbal agreement, defendant agreed to purchase said interest from plaintiff, and to pay him therefor the sum of $2,000, with interest at 10 per cent. That plaintiff then and there gave up and transferred said interest to defendant, but defendant had hitherto failed and refused to pay said purchase price, or any part thereof; whereof plaintiff asks judgment, etc.

The answer denied, generally, the allegations in the petition, and averred that in August, 1869, defendant, acting as agent for one Petitjohn, and not on his own account, sold to plaintiff the one-half of fifteen shares of stock owned by said Petitjohn in the Missouri Lime Company, a body corporate under the laws of Missouri, for which plaintiff paid to defendant, as such agent, and not otherwise, the sum of $2,000, in part of the purchase money. In further denial of the alleged subsequent sale by plaintiff to defendant, it was claimed that such supposed sale was a contract for the sale of goods, wares, and merchandise; that no part of the same was accepted or received by the supposed buyer, nor was any earnest money paid, nor any note or memorandum in writing made to bind the parties.

A reply ignored the alleged agency of defendant; averred that defendant had received and accepted the “said shares so sold, and promised to pay plaintiff for the same;” assumed that “the shares so sold do not constitute such a sale of goods, wares, and merchandise as was contemplated by the statute of frauds and perjuries,” and contained no denial of the corporate character of the Missouri Lime Company.

In a voluminous mass of oral testimony presented by the bill of exceptions, the following items appear to constitute all that is material to the controversy. The plaintiff testified that in August, 1869, he purchased from defendant an interest of one-fourth in the Missouri Lime Company, at the price of $6,000 or $8,000, of which he paid, at the time, $2,000. That defendant gave him a written receipt, stating on what account the money was paid, and that the proper papers were to be thereafter made out. That plaintiff thereupon undertook to superintend the work of the company; but finding, in two or three months, that it did not pay, he expressed his dissatisfaction to defendant, who told him that, if he was dissatisfied with his purchase, all he had to do was “to just be quiet, say nothing about it, and go on with the work, and that he would pay me back my money, with 10 per cent, interest. I might consider it just as a loan.” Plaintiff accordingly kept quiet, and went on with the work. No writing was drawn, nor money paid, nor was there any indication of the agreement or resale other than the conversation referred to. Defendant afterwards repeatedly promised plaintiff to pay him the $2,000 and interest as soon as he could get it. In the cross-examination, plaintiff said that he continued to consider himself a member of the company until he got his money. Plaintiff's son, testifying in his behalf, said that, in the spring of 1870-- which was some months after the alleged resale to defendant by the plaintiff-- defendant told the witness that “he was willing, as soon as they could raise the money,” to buy the plaintiff's interest.

At the close of the plaintiff's testimony, the court, upon defendant's application, instructed the jury that, upon the evidence adduced, the plaintiff was not entitled to...