Howe v. Haterius

• Decision Date: 27 July 1933
• Docket Number: No. 9701.,9701.
• Citation: 66 F.2d 835
• Parties: HOWE v. HATERIUS.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F.2d 835 (1933)

HOWE v. HATERIUS.

No. 9701.

Circuit Court of Appeals, Eighth Circuit.

July 27, 1933.

R. R. Brewster, of Kansas City, Mo. (William B. Bostian, of Kansas City, Mo., on the brief), for appellant.

Charles M. Miller, of Kansas City, Mo., for appellee.

Before KENYON and GARDNER, Circuit Judges, and DEWEY, District Judge.

DEWEY, District Judge.

The assignment of error relates only to an order dismissing an amendment to the answer.

The appellee as plaintiff commenced a suit in the United States District Court for the Western District of Missouri, the petition being filed on the 3d day of May, 1929, and alleges that the defendant, appellant here, and other stockholders of the Manhattan Oil Company, entered into a written contract with him by the terms of which they agreed to pay plaintiff and one C. F. Alexander 10 cents per share as commission for the exchange of shares of stock of the defendant and others in the Manhattan Oil Company for the stock of the Independent Oil & Gas Company; that plaintiff and the said Alexander effected said exchange; that on account thereof there was due them from the defendant the sum of $4,124.40; that the said Alexander had sold and assigned his interest in said commission to the plaintiff. A demurrer to plaintiffs' petition was filed by the defendant on December 3, 1929, but this was withdrawn on February 24, 1930, and on March 17, 1930, the cause was in issue on a general denial.

The matter was then continued until February 27, 1931, when the amendment to the answer was filed by the defendant that was later stricken from the record by the court.

The amendment alleges, in substance, that on or about the 30th day of October, 1927, the defendant, the plaintiff, and C. F. Alexander entered into an oral agreement to act as brokers in the purchase or exchange of the capital stock of various oil companies, and agreed that all commissions realized should be divided equally among said three persons; that, pursuant to said agreement and through their mutual efforts, they did procure exchanges of the capital stock of certain oil companies, and that therefrom C. F. Alexander and plaintiff received large sums of money as commissions and in excess of $3,000; that under their mutual agreement the defendant is entitled to one-third of these commissions, but the other parties have refused to pay the defendant, although he has made demand therefor.

Defendant further alleged:

"That he was the owner of a large amount of the capital stock of the Manhattan Oil Company aforesaid at the time of the procuring of an exchange of stock therein for stock in the Independent Oil & Gas Company, as aforesaid, and that after this defendant and the said Chauncey M. Haterius and Charles Freeman Alexander, in carrying on their mutual agreement, as aforesaid, had negotiated and arranged for the exchange of the stock of certain of the other stockholders in said Manhattan Oil Company for stock in the Independent Oil & Gas Company, as aforesaid, said stockholders refused to carry out said contract of exchange unless a written contract of settlement was had as to the commissions to be paid by them for procuring said exchange, which said commissions had been earned by this defendant, the said Charles Freeman Alexander and Chauncey M. Haterius, as aforesaid, and said stockholders refused to carry out said contract of exchange unless this defendant would, also, sign said contract of settlement as to commission, agreeing upon his part to pay a commission for procuring an exchange of his said stock.

"Defendant further states that, in order to persuade said stockholders to carry out said exchange and thereby entitle said Chauncey M. Haterius, Charles Freeman Alexander and this defendant to commissions for procuring the same, this defendant was induced by the said Chauncey M. Haterius and Charles Freeman Alexander to sign said contract of settlement, together with said other stockholders, wherein each of said stockholders, including this defendant, agreed to pay a commission to said Chauncey M. Haterius and said Charles Freeman Alexander for the procuring of the exchange of their stock in said Manhattan Oil Company for stock in the said Independent Oil & Gas Company, but that it was mutually agreed and understood between said Chauncey M. Haterius, Charles Freeman Alexander and this defendant that this defendant should not be bound by said written agreement but should receive one-third of the commissions received by said Chauncey M. Haterius and Charles Freeman Alexander under the terms thereof pursuant to their said oral agreement made on or about the 30th day of October, 1927, as aforesaid."

And the defendant further alleged that, pursuant to said agreement and understanding, he signed the contract of settlement providing for a payment of 10 cents a share to Haterius and Alexander for the exchange of his stock; that as a result of his signing the contract the other stockholders signed the contract and paid Haterius and Alexander large sums of money as commission, one-third of which belongs under the oral arrangement to the defendant. The defendant then claims that Haterius and Alexander are estopped from asserting any liability upon the part of the defendant under the written contract, and should be enjoined from proceeding against this defendant thereon, and he is entitled to have an accounting taken between him and said Haterius and Alexander for the alleged profits. And the defendant prays that C. F. Alexander be made a party to the action, that said contract of settlement upon which the suit was brought be canceled, in so far as it purports to impose a penalty upon the defendant, and for an accounting with judgment for any sum of money found due the defendant from such accounting and for equitable relief.

On March 2, 1931, the plaintiff moved to strike this amendment on several...