Houston v. Mahoney

• Decision Date: 26 January 1920
• Docket Number: No. 13455.,13455.
• Citation: 219 S.W. 128
• Parties: HOUSTON et al. v. MAHONEY.
• Court: Missouri Court of Appeals

219 S.W. 128

HOUSTON et al. v. MAHONEY.

No. 13455.

Kansas City Court of Appeals. Missouri.

January 26, 1920.

Error to Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by W. R. Houston and W. M. Fible, copartners doing business as Houston, Fible & Co., against Francis L. Mahoney. Judgment for defendant, and plaintiffs bring error. Affirmed.

See, also, 209 S. W. 565.

Lathrop, Morrow, Fox & Moore, of Kansas City, for plaintiffs in error.

Rozzelle, Vineyard, Thacher & Boys, of Kansas City, for defendant in error.

BLAND, J.

Plaintiffs sued to recover damages sustained by them on account of defendant's failure to perform an oral agreement made by him to sell them certain stock of a corporation. The court sustained a demurrer to the evidence for the reason, apparently, that the contract was within the statute of frauds.

Plaintiffs insist that stock in a corporation is not goods, wares, or merchandise within the meaning of section 17 of the Statute of Frauds (section 2784, R. S. 1909). It is claimed that a certificate of stock is merely evidence of an interest in the corporation and is in no sense goods, wares, or merchandise within the meaning of said statute. We think there is no question but that plaintiffs cannot maintain the action. It is firmly established in England that the statute of frauds does not apply to the sale of corporate stock, but the decisions in America are uniform in holding that it does. 20 Cyc. 244; 1 Cook on Corporations (6th Ed.) § 339; Fine v. Hornsby, 2 Mo. App. 61; Bernhardt v. Walls, 29 Mo. App. 246; Franklin v. Matoa Gold Mining Co., 158 Fed. 941, 86 C. C. A. 145, 16 L. R. A. (N. S.) 381, 14 Ann. Cas. 302; Boardman v. Cutter, 128 Mass. 388; Banta v. City of Chicago, 172 Ill. 204, 50 N. E. 233, 40 L. R. A. 611; Tompkins v. Sheehan, 158 N. Y. 617, 53 N. E. 502; Russell v. Betts, 107 Ark. 629, 156 S. W. 457; Mayer v. Child et al., 47 Cal. 142; Pray v. Mitchell, 60 Me. 430; Colvin v. Williams, 3 Har. & J. 38, 5 Am. Dec. 417; Sprague v. Hosie, 155 Mich. 30, 118 N. W. 497, 19 L. R. A. (N. S.) 874, 130 Am. St. Rep. 558; Orr v. Hall, 75 Neb. 548, 106 N. W. 656; Davis Laundry & Cleaning Co. v. Whitmore, 92 Ohio St. 44, 110 N. E. 518, Ann. Cas. 1917C, 988; Hewson v. Peterman Mfg. Co., 76 Wash. 600, 136 Pac. 1158, 51 L. R. A. (N. S.) 398, Ann. Cas. 1915D, 346; Korrer v. Madden, 152 Wis. 646, 140 N. W. 325; Hightower v. Ansley, 126 Ga. 8, 54 S. E. 939, 7 Ann. Cas. 927.

There is testimony in the case, objected to, that practically all sales of stock in Kansas City are made over the telephone. In other words, that it is contrary to business usages that any writing or memoranda be made of any sale of corporate stock, or that delivery of the stock be made or payment for it be received at the time of the making of the sale. Plaintiffs insist that, in view of business usages and common sense, the American rule is archaic and unjust, and that this court should refuse to follow the American cases and change the rule as the courts of England have done. Such an argument, we think, could more properly be made to the Legislature. We are well satisfied with the American rule. We quite agree with the Supreme Court of Georgia when it says, in Hightower v. Ansley, supra, 126 Ga. loc. cit. 10, 54 S. E. 940:

"* * * It is more in accord with the spirit of the law that personal...