Harbaugh v. Ford Roofing Products Co.

• Decision Date: 22 December 1925
• Docket Number: 25000
• Parties: HARBAUGH v. FORD ROOFING PRODUCTS CO
• Court: Missouri Supreme Court

281 S.W. 686

HARBAUGH v. FORD ROOFING PRODUCTS CO

No. 25000

Supreme Court of Missouri, First Division

December 22, 1925

Motion for Rehearing Denied March 12, 1926, Reported at 281 S.W.2d 686 at 689

Abbott Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

Buder & Buder and A. W. Wenger, all of St. Louis, for respondent.

OPINION

Statement

ATWOOD J.

Action for conversion of 100 shares of capital stock of appellant. The petition, among other things, alleged:

That on the 1st day of January, 1921, plaintiff, S. J. Harbaugh, 'was the owner and entitled to the possession of one hundred (100) shares of the capital stock of the Ford Roofing Products Company, of the par value of one hundred dollars ($ 100.00) per share, and which said sum was also the reasonable value of such stock; that the plaintiff has frequently made demand of the defendant for said stock, but that the defendant has continually refused, and still refuses, to turn same over to the plaintiff.'

Damages laid in the sum of $ 10,000. Defendant's amended answer consists of a general denial and further answer:

'That the plaintiff was in its employ for the year 1920; that in addition to a salary to be paid in cash it was agreed between the plaintiff and defendant that he should receive 100 shares of the capital stock of the defendant company; that on the -- day of -- , 1921, he resigned his position which he held in the defendant company, and there was then owing to him on account of salary the sum of $ 475, and, while his services had not been entirely satisfactory, it was agreed that he should receive as a bonus in addition to the cash salary 100 shares of the capital stock of the company, and afterwards, to wit, on the 16th day of May, 1921, the defendant paid him the balance due on his salary, to wit, $ 475, and then and there tendered to him certificate for 100 shares of the capital stock of the Ford Roofing Products Company, which the said plaintiff then and there refused to take. Defendant states that it has ever been ready and willing to deliver to him the proper certificate for 100 shares of stock of the said company, and now offers the same, and to keep said offer good files said certificate as Exhibit A attached to this answer, and, having thus fully answered, defendant prays to be discharged with its costs.'

Plaintiff's reply denies each and every allegation of the amended answer. Case tried before a jury on petition, amended answer, and reply resulting in verdict for plaintiff in the sum of $ 8,313.33, from which verdict and judgment thereon defendant has appealed. Error assigned as follows: (1) The court erred in overruling the defendant's demurrer at the close of all the evidence. (2) The court erred in allowing recovery for more than nominal damages. (3) The verdict is excessive. (4) The court erred in giving plaintiff's isntructions. (5) The court erred in ruling that defendant was not entitled to the surrender of the contract or a release of it on full and final payment or satisfaction, and in refusing the instructions offered by the defendant.

Plaintiff claims ownership of the 100 shares of stock under the following written agreement of July 16, 1920, attached to deposition of John W. Ford, Jr., marked 'Defendant's Exhibit B,' and introduced in evidence by defendant:

'This agreement entered into between the Ford Roofing Products Company, party of the first part, and S. J. Harbaugh, party of the second part, as follows:

'Whereas, the said first party is engaged in the business of manufacturing and selling prepared roofing and asphalt shingles and products kindred thereto; and

'Whereas, the second party is in the employ of the first party, performing such services as may be required of him, under the title of vice president, in charge of sales; and

'Whereas, the first party is desirous of paying to the second party, in the form of bonus, extra compensation for the faithful and efficient performance of his duties:

'Now, therefore, the said first party hereby agrees that there will be set aside out of the full common capital stock of $ 3,400,000, 750 shares of $ 100 each, or total of $ 75,000.

'On January 1, 1921, providing the said second party shall then be in the employ of said first party, and that his services have been satisfactory, the said first party agrees to pay and deliver to the said second party 100 shares, aggregating $ 10,000 of said stock.

'On January 1, 1922, providing the said second party shall then be in the employ of said first party, and that his services have been satisfactory, the said first party agrees to pay and deliver to the said second party a second 100 shares, aggregating $ 10,000 of such capital stock; and

'On January 1, 1923, providing that said second party shall then be in the employ of said first party, and that his services have been satisfactory, the said first party agrees to pay and deliver to the said second party a third 100 shares, aggregating $ 10,000, making a gross amount of 300 shares, aggregating $ 30,000, to be paid to the second party.

'It is further understood that, if the work of the second party and the results obtained by him are of such a satisfactory nature, the first party may give to the second party a further bonus, extra shares of such capital stock.

'It is further agreed that the said second party shall have the right to purchase any or all of the unissued or undelivered portion of said $ 75,000 of capital stock at a par value of $ 100 per share.

'Dated at Chicago, Illinois, this 16th day of July, A. D. 1920.

'Ford Roofing Products Company,

'By J. W. Ford, Jr.,

'President, J. S. Harbaugh.'

Opinion.

Witness Edward R. Lytsinger, vice president of defendant company, testifying in its behalf with reference to the 100 shares of stock in controversy, said that plaintiff 'was entitled to the shares on January 1, 1921.' The stock was made out in the name of plaintiff on December 31, 1920. The contract plainly provides that on January 1, 1921, defendant should 'pay and deliver' this stock to plaintiff, provided he should then be in defendant's employ and his services have been satisfactory. It appears that plaintiff was in defendant's employ on January 1, 1921, and there is no showing that his services were not satisfactory. Moreover, if they were not satisfactory, this objection was waived in the amended answer, which states that, prior to May 16, 1921, one of the dates on which plaintiff says he demanded the stock --

'it was agreed that he should receive as a bonus in addition to the cash salary 100 shares of the capital stock of the company.'

Plaintiff testified that on May 16, 1921, he demanded this stock of defendant's vice president, Mr. Lytsinger, who refused to deliver it to him, unless he would execute and give in exchange therefor a full release and surrender any contracts he had with defendant company. This testimony is corroborated by subsequent letter of Lytsinger addressed to Buder &amp Buder, attorneys for plaintiff, affirming that in this conversation he demanded a full release of plaintiff, and 'told him that, unless he would do so, the stock would not be delivered.' Further corroboration appears in defendant's answer of general denial which long remained on file as its sole pleading in this case until superseded by its amended answer. Testifying as a witness in the case and referring to this conversation of May 16, 1921, Mr. Lytsinger admitted that at first he did demand a full...