Gillen v. Bayfield

• Decision Date: 11 February 1932
• Docket Number: 30007
• Citation: 46 S.W.2d 571,329 Mo. 681
• Parties: Chase Gillen, Appellant, v. W. E. Bayfield
• Court: Missouri Supreme Court

46 S.W.2d 571

329 Mo. 681

Chase Gillen, Appellant, v. W. E. Bayfield

No. 30007

Supreme Court of Missouri

February 11, 1932

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge.

Affirmed.

W B. & Ford W. Thompson for appellant.

(1) The court erred in refusing to give plaintiff's Instruction 1. (2) The court erred in modifying and giving Instruction 1 as modified of its own motion.

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

OPINION

HYDE

This is an action for damages for breach of an alleged contract to sell plaintiff a 40 per cent interest in a hotel corporation and employ him as manager.

Defendant, on January 9, 1925, entered into a written contract to purchase for $ 230,000 from the owner Mr. Sodini, all the capital stock of the Majestic Hotel Company, which operated a hotel in St. Louis. Defendant paid $ 5,000 in cash on the purchase price, and was required by the contract to pay $ 100,000 in cash on February 1st, and give notes totalling $ 125,000, payable $ 1500 per month for the balance. February 1st came on Sunday and defendant claims that the contract required settlement on Saturday, January 31st. (The contract was not in evidence). Defendant had previously talked to plaintiff about going into this deal. They had looked over the hotel together; gone through its books; and checked up the business it was doing. They met again in St. Louis on the day defendant made the contract with Sodini. Plaintiff owned a one-half interest in a hotel in Wichita, Kansas, and could only get the money to pay one-half of the cash payment by selling it.

On the day defendant made the contract with Sodini he wrote out the proposition he made to plaintiff, which was:

"I agree to sell to Mr. Charles Gillen 50% of the capital stock of the Majestic Hotel Corporation of St. Louis, Missouri, at the same price and terms that the stock is sold to me by Mr. Sodini; Mr. Charles Gillen agrees to pay his 50% of the purchase price in cash, and 50% of the working capital. The deal is to be closed February 1, 1925. But Mr. Gillen must notify me that he will take the stock as above outlined not later than the 20th of January, 1925. Salaries to be $ 950.00, as follows: $ 650.00 -- $ 300.00 per month. Mr. Gillen $ 650.00 and Mr. Bayfield $ 300.00, and railroad fare to and from Terre Haute, Indiana. Mr. Gillen to have rooms and board for himself and family.

"(Signed) W. Bayfield."

Defendant was very anxious for plaintiff to go into the deal, but plaintiff either was doubtful about going into it or was unable to make arrangements to raise the money. Defendant sent plaintiff letters and telegrams urging him to go ahead with the deal and offering to help him raise the money. The following were some of the telegrams:

January 12, 1925: "Terre Haute, Indiana. To Chas. Gillen. 'Please wire if you are sure of going in on the Majestic. Have several parties anxious to join me. Prefer you but would like to know. Please wire. W. E. Bayfield, Deming Hotel."

January 16, 1925: "If you would prefer not to buy in St. Louis it will be OK with me, but please let me know as soon as possible. W. E. Bayfield."

January 20, 1925: "If I must put up Ten Thousand Dollars more than my share, will expect stock for it, giving you contract to purchase it at cost price. Am willing to advance this, but must not be put off again, time is too short. W. E. Bayfield."

January 21, 1925: "I promised to give you the opportunity to buy with me; if you can't make it go, let me know. I have sold enough stuff to take my half. If I have to finance the whole, must know, as the market is changing each day. In answer to your letter just received, hope you can make it, but let me know today, Wednesday, sure. I can't take further chances. W. E. Bayfield."

There were two other telegrams on January 21st by which defendant arranged for plaintiff to meet him at Terre Haute, Indiana, on January 22nd. At that time plaintiff, definitely, advised defendant that "he would be short, in raising enough cash to buy a half interest, because he would have to take some notes" to make a sale of his Kansas hotel interest. Defendant then agreed to let plaintiff in the deal with a purchase of less than half of the stock. Defendant signed and delivered to plaintiff the following proposition, which plaintiff claims was a modification of the proposition of January 9th, to-wit:

"This agreement made and entered into this 22nd day of January, 1925, by and between W. E. Bayfield, of Terre Haute, Indiana, and Charles Gillen, of Wichita, Kansas; Mr. W. E. Bayfield having purchased the entire capital stock of the Majestic Hotel Company, a corporation organized under the laws of the State of Missouri, this stock being the entire capital stock representing the ownership of the Majestic Hotel, St. Louis, Missouri.

"Mr. Charles Gillen desires to purchase a portion of the stock of the Majestic Hotel, and Mr. W. E. Bayfield agrees to sell to Mr. Charles Gillen any portion of the stock up to 50% and not more than 50% of the stock, upon the following conditions:

"Mr. Charles Gillen is to purchase the stock at the same price and under the same conditions that Mr. W. E. Bayfield has purchased the aforesaid stock.

"Mr. Gillen is to have the management of the hotel and give it his entire time and personal supervision at a salary mutually agreed upon. [Here follow provisions concerning the management of the hotel and for plaintiff to sell out to defendant in case of disagreement.]

"This agreement to sell stock to Mr. Charles Gillen is subject to an agreement entered into by Mr. W. E. Bayfield on January 9, 1925, with Mr. Harry Sodini, it being understood that if Mr. W. E. Bayfield cannot effect this deal with Mr. Harry Sodini, in that event this agreement would become null and void and binding in no way to Mr. W. E. Bayfield. This agreement and conditions of sale are binding upon Mr. Charles Gillen, his heirs and assigns.

"(Signed) W. E. Bayfield.

"(Witness) George P. Kohler."

While this written proposition did not specify any certain amount of stock which plaintiff was to take, both parties claim that it was expected that defendant, if he came in at all, would take 40% of it and that $ 40,000 was the amount he undertook to raise. Up to this point, the evidence is harmonious as to the facts, but the parties violently disagree as to what afterward transpired.

According to plaintiff's evidence, which was his own testimony, except the bank records, he sold his Kansas hotel interest for $ 25,000 in cash and $ 25,000 in notes; and in order to be on the scene, on the day the deal was to be closed between defendant and Sodini, drove from Wichita to St. Louis, a distance of some 500 miles, over rough and frozen roads, arriving on the evening of Friday, January 30th. He went to the Marquette Hotel and went to bed, first leaving a call for defendant at the Majestic Hotel. About nine o'clock that night defendant "called him on the phone and asked him to come right down to the Majestic Hotel; that he told him that he was worn out, was ready for bed." Plaintiff said that defendant told him the deal would have to be closed the next morning; and that he told defendant that he had to go to East St. Louis to get some more money in order to raise his $ 40,000 in cash, but would be at the Majestic at ten o'clock in the morning. He said he had $ 25,000 on deposit in the National Bank of Commerce in St. Louis; that he went the next morning (Saturday, January 31st) to the Southern Illinois National Bank in East St. Louis and arranged for enough money there to make a balance of $ 15,000 in that bank; that he called defendant a few minutes before ten A. M. from the East St. Louis bank and told him he had the money and would be there as soon as he could drive over; and that he got to the Majestic Hotel a few minutes after ten o'clock. He found defendant very angry. He said he had been sitting there all morning waiting for plaintiff; that he was giving him a lot of anxious moments; that he had just telephoned to Chicago and arranged to get the balance of the money there; and that he was going to take care of it himself and was not going to bother with plaintiff. Defendant and Sodini then went to an attorney's office and closed the deal. Plaintiff said that he moved to the Majestic Hotel that night, and had some further conversation with defendant during the next few days, but that defendant refused to sell him any of the stock and finally ordered him out of the hotel.

The records of the Bank of Commerce, produced by plaintiff, showed that $ 25,000 was deposited to his credit there on January 26, 1925. The records of the East St. Louis bank, which plaintiff also offered in evidence, showed that on January 30, 1925, three deposits were made to plaintiff's account, totaling $ 11,500, which made his balance on that day $ 15,121.50.

Defendant's evidence, which was corroborated by W. E. Vaughn, the broker who made the deal between defendant and Sodini, and also, as to what happened on the 31st by Mr Sodini and Mr. Lloyd, an employee of defendant, was that plaintiff arrived in St. Louis a few days before the 30th and stayed at the Majestic Hotel until that day or the 29th when he moved to the Marquette Hotel; that Thursday or Friday plaintiff told Sodini he did not have the money to go through with the deal and asked him "to put the matter off for awhile," which Sodini refused to do; that when defendant reached him on the phone on the night of the 30th, plaintiff said he did not have the money, but thought he could raise $ 25,000; and that he could not get the money until Monday. Defendant had only arranged to take care of 60% of the purchase price and was relying upon plaintiff for the rest. When plaintiff...