Klein v. Johnson

• Decision Date: 08 June 1915
• Docket Number: No. 13922.,13922.
• Citation: 178 S.W. 262,191 Mo. App. 453
• Parties: KLEIN et al. v. JOHNSON.
• Court: Missouri Court of Appeals

178 S.W. 262

191 Mo. App. 453

KLEIN et al. v. JOHNSON.

No. 13922.

St. Louis Court of Appeals, Missouri.

June 8, 1915.

Rehearing Denied July 15, 1915.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

"Not to be officially published."

Action by Eugene S. Klein and another, executors of Jacob Klein, deceased, against John D. Johnson. From a judgment for plaintiffs, defendant appeals. Affirmed.

Loomis C. Johnson, of St. Louis, for appellant. T. K. Skinker, of St. Louis, for respondents.

ALLEN, J.

In November, 1909, the late Judge Jacob Klein, of the city of St. Louis, purchased 6,667 shares of the "treasury stock" of the Pearl Tatum Mining Company, of the par value of $1 each, for which he paid $1,000. 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, inclosing 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 (90) 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 cheek for the inclosed 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 $1,000, 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 $1,000. 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 proceeds the letter written by the defendant to Tatum on November 17, 1909, shows that the stock had then been sold to Judge Klein; that the purchase of the stock was a past consideration, so far as it had to do with the obligation of defendant evidenced by the letter; and that there was no independent consideration for defendant's said agreement to take the stock from Judge Klein within 90 days after November 19, 1910, at the price paid therefor by the latter. And it is said that the following language of the letter itself shows that the purchase of the stock was a past consideration for defendant's said promise, viz.:

"In consideration of your having purchased the said shares at my request and on my recommendation, I hereby agree," etc.

But we perceive no merit in the contention that the contract contained in defendant's letter was without a present valuable consideration. It quite clearly appears that the sale to Judge Klein was actually consummated by the defendant, and that defendant's letter quoted above was a part and parcel of the transaction. This letter also contains a request that Judge Klein make his check payable to defendant personally, which was complied with. And it further appears that defendant, pursuant to a prior arrangement with Tatum, retained one-half of the proceeds of the check to apply upon an indebtedness of the company to him, forwarding the remainder to the corporation. That there was ample consideration for defendant's promise sued upon we think cannot be doubted. The argument that the letter shows...