James v. Clough

• Decision Date: 22 March 1887
• Parties: SAMUEL JAMES, Respondent, v. E. R. CLOUGH, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 147

SAMUEL JAMES, Respondent, v. E. R. CLOUGH, Appellant.

Court of Appeals of Missouri, St. Louis.

March 22, 1887

APPEAL from the Laclede County Circuit Court, R. W. FYAN, Special Judge.

Affirmed.

JAMES MORAN and J. H. QUINN, for the appellant: By that contract the amount subscribed by the various persons became the property of the corporation, and the plaintiff had no interest in it, other than as a stockholder in the corporation; hence, not the real party in interest, and can not maintain this action. Rev. Stat., sects. 3462, 3464, 3466; Hutchings to use v. Blackford, 35 Mo. 285; Williams v. Whitlock, 14 Mo. 553; Cable v Clark, 21 Mo. 223; Ramey v. Smizer, 28 Mo. 310; Dewey v. Carey, 60 Mo. 224. It was the duty of the court to construe the agreement, and not leave that question to the jury. St. Louis Gaslight Co. v. City of St Louis, 46 Mo. 128; Michael v. Insurance Co., 17 Mo.App. 23 (26 N.W. 522); Edwards v. Smith, 63 Mo. 119. The defendant, having been induced to sign the subscription by the deception practiced by the plaintiff, is not bound. Briggs v. Evarts, 51 Mo. 245; Cole v. Wiedmair, 19 Mo.App. 7; Rothschild v. Frensdorf, 21 Mo.App. 318; Cahn v. Bungardt, 18 Mo.App. 115. The representations of the plaintiff are material to an honest and fair conclusion of the contract between the parties, and it was manifest error in the court to exclude the same. Pitt v. Gentle, 49 Mo. 74; Wright v. McPike, 70 Mo. 175; Caldwell v. Henry, 76 Mo. 254; Dulaney v. Rogers, 64 Mo. 201; Edwards v. Smith, 63 Mo. 119; The State to use v. Miserz, 74 Mo. 596; Briggs v. Evarts, 51 Mo. 245.

J. P. NIXON, for the respondent: The interpretation of a written contract is a question for the court, and not for the jury. Michael v. Insurance Company, 17 Mo.App. 23; Fruin v. Railroad, 6 West. Rep. 606; Burris v. Blair, 61 Mo. 140; Shepard v. St. Charles, 28 Mo. 377; Edwards v. Smith, 63 Mo. 127; 14 Mo.App. 91. There is no allegation in the answer, that the defendant was deceived by, or relied upon, the alleged fraudulent representations. Terry v. Insurance Co., 3 Mo.App. 595; Parker v. Marquis, 64 Mo. 38; Bryan v. Hitch, 43 Mo. 531; 2 Pars. on Cont. 773. The execution of the contract sued on, not being denied under oath, stands confessed. Rothschild v. Frensdorf, 21 Mo.App. 323; Smith v. Rembaugh, 21 Mo.App. 391; McGill v. Wallace, 22 Mo.App. 683.

OPINION

ROMBAUER J.

Sundry citizens of Laclede county, and among their number the defendant, being desirous to have a woolen mill erected in the town of Lebanon, in said county, upon the solicitation of the plaintiff, signed the following agreement:

" Whereas, we, the undersigned citizens of Laclede county, are desirous of having a woolen mill erected at Lebanon, Missouri, and Samuel James, signifying his purpose to build, and operate, one, therefore, and for the purpose of aiding him in so doing, we agree to pay the sum set opposite our respective names, to him, as an inducement. It being understood that the said Samuel James obligates himself, on receipt of the sum of twenty-five hundred dollars, for the erection of the building by subscription, to furnish, and put in machinery, of the value of twenty-five hundred dollars, for the successful operation of said mill, and, in case of his failure in performing his part, this subscription to lapse, and the interest or subscription advanced and put in the building to be a subsisting lien on said building, and, if not paid into the building, to be returned by him to the donors."

The sum set opposite the defendant's name is one hundred dollars, the total subscription amounting to $2,598.

The defendant failing to pay his subscription on demand, the plaintiff instituted this suit against him before a justice, setting out in his statement the conditions of the subscription, and averring full performance of the undertaking on his own part. The defendant filed a denial, setting up the following affirmative defence:

" The defendant, further answering, states and alleges the facts to be, that he, the plaintiff, represented to the defendant that the Lebanon Woolen Mill Manufacturing Company would not rebuild, and, if the defendant would subscribe one hundred dollars, he, the plaintiff, would build and furnish machinery worth twenty-five hundred dollars, and would operate the same himself, for his own exclusive benefit, and, when erected, no other person would have any interest in, or to, the same, and that Hoskinson, Ellis, or the Lebanon Woolen Mill Company would not have any interest in the mill when erected, and that he was unable to build without such subscription; that the defendant, induced by the representations of the plaintiff, and for the purpose of aiding the plaintiff to build and furnish the machinery, did subscribe, and promise to pay, the sum of one hundred dollars, in consideration of the plaintiff building said mill, and putting in twenty-five hundred dollars worth of machinery, and operating the same, but with the express agreement that he would not pay the same, if Hoskinson, Ellis, or the Woolen Mill Company had any interest in the mill he would build; that the plaintiff did not build said mill nor put in twenty-five hundred dollars worth of machinery, as he agreed to do, but the Lebanon Woolen Mill Manufacturing Company did build the said mill, and furnish the machinery for operating the same; that the plaintiff demanded the one hundred dollars, subscribed as aforesaid, from the defendant, and the defendant refused to pay the same, because the plaintiff did not comply with his agreement--on the contrary, sold and transferred all his right, title, and interest in, and to, the said subscription list to the Lebanon Woolen Manufacturing company, for one thousand dollars."

There was judgment for the plaintiff on trial anew in the circuit court, and the defendant appealing assigns for error, that the court excluded legal testimony offered by him, and gave erroneous instructions to the jury.

Upon the trial the subscription agreement was offered in evidence, the defendant's signature thereto not being denied. The plaintiff then gave evidence tending to show that he erected the mill and put in machinery at an expense of thirty-four hundred dollars and more, giving the items of expenditure in detail, and did this on the faith of the subscription; that besides the subscriptions collected, he put in part of his own money, about forty dollars; that the money not being sufficient he made an arrangement with Hoskinson and Ellis, who had subscribed seven hundred dollars, to let them have all the money he could collect on the subscriptions, they to furnish the necessary money for the erection of the mill, the plaintiff to get one thousand dollars of the capital stock of a corporation to be formed, to receive three dollars per day while engaged in building the mill, and one-third of the profits; that the mill was erected mainly with money furnished by Hoskinson and Ellis, and sixteen hundred dollars collected from persons who had signed the subscription list; that the plaintiff was to have the exclusive charge of running the mill when completed, and that the one-third net profits of the earnings of the mill was to be paid to him by the corporation by way of salary.

Upon the cross-examination of the plaintiff, he was asked what passed orally between him and other subscribers at the time, when the subscriptions were obtained as to conditions upon which such subscriptions were about to be made. This testimony being objected to, as an attempt to vary the written contract entered into, by oral testimony, the defendant, upon suggestion of the court, made the following offer of proof:

" That he, the plaintiff, told the defendant and all others to whom he presented the subscription, that he would build and operate the woolen mill himself; that the Lebanon Woolen Manufacturing Company would not have anything to do with the mill that would be erected by him, nor would Isaac Hoskinson, or Erwin Ellis; that the defendant and other persons who subscribed to aid him in building the mill, told the plaintiff at the time they subscribed, that he would not give any money or aid him in any manner if the Lebanon Woolen Manufacturing Company, or Hoskinson, or Ellis, was to have any interest in, or connection whatever with, the mill that he was to erect; that the plaintiff assured the defendant, at the time he subscribed, that he would build the mill himself and for his exclusive benefit, and that the Lebanon Woolen Manufacturing Company, or Hoskinson, or Ellis, would not have any connection with, or interest in, the mill when completed;

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