Green v. Higham

Decision Date26 March 1901
Citation161 Mo. 333,61 S.W. 798
PartiesGREEN v. HIGHAM.
CourtMissouri Supreme Court

1. Defendant, after selling plaintiff's brother 260 shares of certain stock, afterwards sold plaintiff 140 shares; and the three executed an agreement to pool 600 shares, all benefits to be shared equally, including any sales, and also declaring that defendant would divert to such pool any proceeds and royalties received by him from shares held by him in a certain other company. Held, that the defendant's gain from the sale to the others, and the fact that the brothers were brokers, and might more easily sell 600 shares than a smaller number, was a sufficient consideration for defendant's agreement.

2. An agreement by parties to form a pool of shares of certain stock owned by them, and to share equally all benefits accruing under the pool, including all sales, was valid, without a transfer of the shares to any one person as trustee, or a power of attorney to any one person to sell the stock.

3. Defendant sold plaintiffs stock in the A. Co., and then agreed with them to form a pool, each contributing 200 shares of such stock, and also agreed to divert to such pool the royalties and proceeds from stock in the B. Co. until such time as the A. Co. should begin paying regular dividends. It was contemplated by all parties that the A. Co. would soon commence paying dividends, and defendants' royalties from the B. Co. were to cease on a certain date. Held, that the agreement for a pool was not void on the ground that the duration of the pool was not sufficiently definite.

4. Where defendant sold plaintiff's brother 260 shares of stock, and sold plaintiff 140 shares under an agreement that the three form a pool of 600 shares, defendant contributing 200, and that they share equally all benefits accruing under the pool, including any sales, the issuance of the 140 shares to plaintiff's wife, with the full knowledge and direction of defendant, and the temporary pledge of the 260 shares by the brother, were not sales, within the contemplation of the agreement.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Levi W. Green against Charles C. Higham. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit for an accounting and the balance thereon alleged to be due plaintiff for his share of certain royalties collected by defendant from the American Brake Company. In March or April, 1891, defendant sold Arthur Green, a brother of plaintiff, 260 shares of the Consolidated Brake Company. Arthur Green testifies that defendant represented that the last-mentioned company was in a flourishing condition, and he might expect satisfactory dividends within a year. Defendant denies this. In 1892 defendant sold to plaintiff, through his brother, Arthur Green, 140 shares of Consolidated Brake stock. Arthur Green testifies that at the time of this last sale he reminded defendant of his statement that said company would pay a dividend, and that it had not done so. Contemporaneously with this last sale the two brothers and defendant entered into the following written contract: "Whereas, C. C. Higham, of St. Louis, Missouri, Arthur H. Green, of Rochester, N. Y., and Levi W. Green, of the same place, are each the possessor of two hundred shares of the capital stock of the Consolidated Brake-Adjuster Company; and whereas, the said parties are desirous of forming a pool of said stock for their mutual advantage and benefit; and whereas, said C. C. Higham agrees to divert to said pool the royalties and proceeds now received or which may be received by him from the American Brake Co. of St. Louis, Mo., until such time as the said Consolidated Brake-Adjuster Company shall begin paying regular dividends: Now, therefore, be it known that we, the undersigned, do hereby form a pool consisting of six hundred shares of said capital stock of said Consolidated Brake-Adjuster Co., of which we each shall stand possessed of two hundred shares, the understanding being that all benefits accruing under said pool shall be shared equally, including any sales of said stock, and that said royalties and proceeds also shall be equally shared, until such time as the said Consolidated Brake-Adjuster Company shall pay dividends as aforesaid, when the said royalties shall revert to the sole use and benefit of said C. C. Higham. Witness our hands and seals this 20th day of February, 1892. Chas. C. Higham. [Seal.] Arthur H Green. [Seal.] Levi W. Green. [Seal.] Witness: W. S. Higham." The Green brothers were brokers. Under this written contract defendant Higham from time to time received his royalties from the American Brake Company, and paid over to Arthur and Levi Green their respective shares, according to the contract, until the year 1895. This suit is for their share of those royalties since 1895. Arthur Green assigned his interest in the contract to his brother, the...

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