Klein v. Johnson

• Citation: 178 S.W. 262,191 Mo.App. 453
• Parties: EUGENE S. KLEIN et al., Executors, Respondents, v. JOHN D. JOHNSON, Appellant
• Decision Date: 08 June 1915
• Court: Missouri Court of Appeals

178 S.W. 262

191 Mo.App. 453

EUGENE S. KLEIN et al., Executors, Respondents, v. JOHN D. JOHNSON, Appellant

Court of Appeals of Missouri, St. Louis

June 8, 1915

Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.

AFFIRMED.

Judgment affirmed.

Loomis C. Johnson for appellant.

(1) The offer contained in appellant's letter of November 24 1909, to Judge Klein was unsupported by any valid consideration and therefore was and is unenforcible. Bulkley v. Landon, 2 Conn. 404; Comstock v Smith, 7 Johns. 86; Bank v. Striever, 82 N.Y. 508; Arend v. Smith, 151 N.Y. 505; McQuaid v. Baughman, 167 Ill. 430; Cleaver v. Lenhart, 182 Pa. 285; Howard v. McNeil (Ky.), 78 S.W. 142; Littlepage v. Pub. Co., 34 App. (D. C.), 264, and cases cited; German v. Gilbert, 83 Mo.App. 416; Lungstras v. German Ins. Co., 48 Mo. 204; McFarland v. Heim, 127 Mo. 333; Lingenfelder v. Brewing Co., 103 Mo. 593; Lamp Co. v. Mfg. Co., 64 Mo.App. 118; Moomaw v. Emerson, 80 Mo.App. 318. (2) Even assuming for the sake of the argument that the offer evidenced by appellant's letter of November 24, 1909, was supported by an adequate consideration, yet any rights acquired thereunder by Judge Klein were personal with and to him and when the offer therein contained was not accepted, or when such rights were not exercised by him prior to his death, they did not descend to his heirs or executors. McMillan v. Philadelphia, 159 Pa. 142; Ide v. Liser, 10 Mont. 5; Hopewood v. McCausland, 120 Ia. 218; Hanly v. Watterson, 39 W.Va. 214; Litz v. Gosling, 93 Ky. 85; Dodge v. Kiene, 28 Neb. 216; Levy v. Rother, 29 N.Y.S. 1057; Rivers v. Oak Lawn S. Co., 52 La. Ann. 762; Clark v. Mining Co., 28 Mont. 462; McQueen v. Chouteau's heirs, 20 Mo. 222; Boykin v. Campbell, 9 Mo.App. 495; Lansden v. McCarthy, 45 Mo. 106; Implement Co. v. Iron Works, 129 Mo. 222; Newton v. Newton, 11 R. I. 394; Mynell v. Surtees, 3 Smith & G. Rep. (Chan. Div.), 101, 117; Fulton v. Messenger, 66 S.E. 830; Dyer v. Duffy, 39 W.Va. 156; Rease v. Kittle, 56 W.Va. 269; Sutherland v. Parker, 75 Ill. 330; Arkansas Valley T. Co. v. Belder, 127 U.S. 390. (3) The court below erred in fixing the measure of damages. Lumber Co. v. Warner, 93 Mo. 386; Brown v. Asphalt Co., 210 Mo. 260; Diffenderfer v. Board of Public Schools, 120 Mo. 447; Whitmore v. Coats, 14 Mo. 9; Northrup v. Cook, 39 Mo. 208; Koeltz v. Bieckman, 46 Mo. 321; Rickey v. Ten Broeck, 63 Mo. 567; Masterson v. Mayor, 7 Hill, 61.

T. K. Skinker for respondents.

(1) The promise contained in appellant's letter of November 24, 1909, is founded on ample consideration. (a) The letter and the payment and delivery of the stock were all parts of one and the same transaction. (b) The alleged contract was oral and void under the Statute of Frauds (Rev. Stat., Sec. 2784). Bernhardt v. Walls, 29 Mo.App. 206. (c) Judge Klein made his check payable to defendant's order at defendant's request, and thereby assumed a risk. This is sufficient consideration. Flannagan v. Kilcome, 58 N.H. 442; Marks v. The Bank, 8 Mo. 316; Tucker v. Dolan, 109 Mo.App. 442, 446; Lindell v. Rokes, 60 Mo. 249; Williams v. Jensen, 75 Mo. 681, 685; Lancaster v. Elliott, 55 Mo.App. 249; Lamp Co. v. Manufacturing Co., 64 Mo.App. 115. (2) The obligation sued on is not one personal to Judge Klein alone, but was intended as an assurance of the value of the stock, and is available to his executors. Fuller v. Dempster, Admr. of Beatty, 8 Pa. S. C. Cases, Annotated by Sadler, 546; Hayes v. O'Brien, 149 Ill. 403; Chamberlain v. Dunlap, 126 N.Y. 745; Kernochan v. Murray, 111 N.Y. 306; House v. Jackson, 26 Ore. 89; Kerr v. Day, 14 Pa. 112; Simmons v. Lide, 94 Ga. 553; Gustin v. School District, 94 Mich. 508; Couch v. McCoy, 138 F. 686, 703; Hardy Implement Company v. Iron Works, 129 Mo. 222; Boykin v. Campbell, 9 Mo.App. 495; Leahy v. Dugdale, 27 Mo. 437; City v. Clemens, 42 Mo. 69. (3) The trial court properly permitted the respondents to recover the price at which appellant agreed to take the stock. (a) Because the transaction is substantially an agreement for rescission. Laubach v. Laubach, 73 Pa. 387; Thorndike v. Locke, 98 Mass. 340. (b) The measure of recovery ought not to be different if this were held merely an agreement of sale. Dustan v. McAndrew, 44 N.Y. 72; 2 Parsons on Contracts, 484; Sedwick on Measure Damages, 282; Lewis v. Greider, 49 Barb. 606; Dehner v. Miller, 166 Mo.App. 504, 510; Oehler v. Fruit Co., 162 Mo.App. 446; Koenig v. Boat Mfg. Co., 155 Mo.App. 685; Range Co. v. Mercantile Co., 120 Mo.App. 428; Lumber Co. v. Lumber Co., 53 Mo.App. 561; Dobbins v. Edmonds, 18 Mo.App. 807; Black River Lumber Co. v. Warner, 93 Mo. 374; Roaring Fork Asso. v. Clemens Produce Co., 171 S.W. 584; Anderson v. Frank, 45 Mo.App. 482, 486; Stumpf v. Mueller, 17 Mo.App. 283; Crown Vinegar Co. v. Wehrs, 59 Mo.App. 493; Graham v. Jackson, 14 East, 498; 104 Eng. 693. (c) In cases where corporate stock is the subject of the sale the measure of recovery universally allowed is the contract price. Campbell v. Woods, 122 Mo.App. 719; Thorndike v. Locke, 98 Mass. 340; Pearson v. Mason, 120 Mass. 53; Duchemin v. Kendall, 149 Mass. 175; Madison v. Decker, 72 N.Y. 595; Fuller v. Dempster, 8 Pa. S. C. Cas. (Sadler) 546; Range Co. v. Mercantile Co., 120 Mo.App. 438, 448. The triple rule of recovery is approved everywhere. Van Brocklen v. Smeallie, 140 N.Y. 70; Hayden v. Demets, 53 N.Y. 426; Quick v. Wheeler, 78 N.Y. 305; Higgins v. Murray, 73 N.Y. 252; Schwarzer v. Brewing Co., 74 A.D. 382; Lincoln Shoe Co. v. Sheldon, 44 Neb. 279, 290; McClure v. Williams, 5 Sneed, 718; Hamilton v. Finnegan, 117 Iowa 623, 627; McCormick Co. v. Markert, 107 Iowa 340; Harris Mfg. Co. v. Marsh, 49 Iowa 11; Rosenbaum v. Weeden, 18 Gratt. 785; Crawford v. Avery, 35 Miss. 209; Bagley v. Findlay, 82 Ill. 524; Barrow v. Window, 71 Ill. 214; Cook v. Brandeis, 3 Met. (Ky.) 355; Bell v. Offutt, 10 Bush, 632; Mitchell v. Le Clair, 165 Mass. 308. And the rule applies to sales of real estate as well as personal property. Brown v. Slee, 103 U.S. 828; Briggs v. Munchon, 56 Mo. 467; Oatman v. Walker, 33 Me. 67; Alna v. Plummer, 4 Me. 258.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

In November, 1909, the late Judge Jacob Klein, of the city of St. Louis, purchased 6667 shares of the "treasury stock" of the Pearl Tatum Mining Company, of the par value of $ 1 each, for which he paid $ 1000. For some time prior thereto, one Tatum, the general manager of the mining company, had endeavored to sell Judge Klein some of this stock. Tatum had formerly been a practicing attorney in the city of St. Louis, but had removed to the State of Colorado. He visited St. Louis from time to time, and in April or June, 1909, he first saw Judge Klein in reference to the sale of stock to the latter. He had a number of interviews with Judge Klein, but was unable at that time to consummate a sale. In October of the same year he procured the assistance of defendant in the premises, the latter being a heavy stockholder in the company and a creditor thereof as well. He and defendant saw Judge Klein at the latter's office, but nothing definite was accomplished and Tatum returned to Colorado, but before doing so urged defendant to see Judge Klein further in regard to the matter, and later wrote defendant to the same effect. On November 17, 1909, defendant wrote Tatum informing him that he (defendant) had sold the above mentioned shares of stock to Judge Klein, requesting that a certificate therefor be issued and sent to defendant for delivery accordingly. This was done, and on November 24, 1909, defendant wrote the following letter to Judge Klein, enclosing therewith the certificate of stock, viz.:

"Dear Sir:

"I am handing you herewith certificate No. 393 for 667 [sic] shares (par value $ 1.00 each) of the Pearl Tatum Mining Company, made out in your name, for which you are to pay 15 cents a share or a total of one thousand dollars, and in consideration of your having purchased the said shares at my request and on my recommendation, I hereby agree when requested by you, at any time within ninety days next after the 19th day of November, 1910, to purchase the said shares from you and pay you therefor the sum of 15 cents per share, or the aggregate sum of one thousand dollars.

"Please make the check for the enclosed shares in my favor. Also sign and return me the receipt for the shares which is pinned to the certificate, and oblige."

Pursuant to the request contained in defendant's letter Judge Klein sent his check to defendant, payable to the latter, for $ 1000, and retained the stock for which he executed a receipt to the company. Judge Klein died on August 23, 1910; and on January 25, 1911, his executors, plaintiffs herein, tendered the stock to the defendant and demanded payment of the said sum of $ 1000. Defendant having declined to make such payment, this suit was instituted to recover the amount with interest.

The trial, before the court without the intervention of a jury, resulted in a judgment for plaintiffs for the amount demanded, with interest, and the case is here upon defendant's appeal.

The court below held that the plaintiffs could maintain their action on the contract contained in defendant's letter. This ruling we think correct; and we are of the opinion also that no fault may be found with the amount of the recovery. Learned counsel for appellant, however, challenges plaintiffs' right to recover at all, for reasons to be briefly noticed, and further contends that in no event should the judgment have been for more than nominal damages.

It is argued that defendant's letter, of November 24, 1909, was unsupported by any valuable consideration, and was therefore a mere nudum pactum and unenforceable. As this argument...