Knapp v. Hanley
| Decision Date | 29 November 1904 |
| Citation | 83 S.W. 1005,108 Mo.App. 353 |
| Parties | KNAPP, Appellant, v. HANLEY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. R. Kinealy Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Vernon W. Knapp and John A. Harrison for appellant.
(1) Whether there was a contract in legal effect such as that alleged in the petition was a question of intention, whether the minds of the parties met upon or with such an understanding between them, to be determined by the jury under all the facts and circumstances of the case. The case should, therefore, have been submitted to the jury. Mosby v. Commission Co., 91 Mo.App. 500; Thurston v Thornton, 5 Mass. (1 Cush.) 89; Bornstein v Lans, 104 Mass. 214; Savory v. Ingersoll, 2 N.Y. State 218; Devries v. Haygood, 64 N.C. 83. (2) There was evidence to sustain the petition, and the case should therefore have gone to the jury. Where authority is conferred upon two or more agents to represent their principal in the transaction of business of private nature, it is the rule that such an agency will be presumed to be joint. Mechem on Agency, sec. 76. (3) When, however, the authority was not conferred by written instrument and the facts are in dispute, it is for the jury to determine under proper instructions, not only whether an agency exists, but if so, what is its nature and extent. Mechem on Agency, sec. 106. 1 Parsons on Contracts (6 Ed.), page 11. 1 Beach on Contracts, sec. 668; Elliott v. Bell, 37 W.Va. 834; 7 Am. Ency. of Law, 104.
Jones, Jones & Hocker and H. Chouteau Dyer for respondent.
(1) The evidence offered by plaintiff failed to establish the cause of action alleged in the petition. The instruction in the nature of a demurrer was therefore properly given. Charles v. Patch, 87 Mo. 450; Hyde v. Railway, 110 Mo. 272, 19 S.W. 483. (2) "When the plaintiff's own evidence is inconclusive, and that of his other witnesses fails to support the issue on his part, but rather that of the opposite party, there is not sufficient evidence of the issue to be submitted to the jury." Rottman v. Pohlman, 28 Mo.App. 399; Wheedon v. Ames, 28 Mo.App. 243. (3) The evidence fails to disclose any agreement on the part of Hanley to pay Knapp anything, nor does it disclose facts out of which such a contract could be implied. Green v. Cole, 103 Mo. 70, 15 S.W. 317; Robinson v. Estes, 53 Mo.App. 582; Brewington v. Misker, 51 Mo.App. 348; Fitch v. Snedaker, 38 N.Y. 248; Eastwood v. Kenyon, 11 Ad. & E. 451; Hughes v. Ewing, 162 Mo. 261, 62 S.W. 465.
In April, 1902, the Mercantile Trust Company and Mississippi Valley Trust Company were severally seeking the control of the Wiggins Ferry Company, and by their competitive purchases the value of the stock had been greatly advanced, and as the contest for acquisition of a majority of the stock progressed between these rival financial institutions, which succeeding events disclosed were in truth the aggressive representatives of powerful railroad organizations, the stock remaining undisposed of and subject to purchase was lessened by acquisitions of the contending interests and its ownership became more important to each as decisive of the control of the corporation, and extravagant and widely varying high prices were paid to and obtained by those stockholders who had not sold or committed themselves to sale by prior agreement. Charles Mulliken, residing in the State of Virginia, was at such period owner of 107 shares, and plaintiff Knapp, his maternal uncle, was his regular business agent in St. Louis who handled and transacted his affairs in that city. Mulliken had received an offer by telegraph for this stock from the president of the Ferry Company, which he stated he had accepted conditionally by telegraphic response. On the morning of April 28th, plaintiff had sold 200 shares of the same stock to the Mississippi Valley Trust Company on behalf of plaintiff's mother at the rate of $ 600 per share, and obtained a like offer from it for her son's stock while occupied in consummating sale of the mother's stock, but had merely reserved to the son the right of accepting such offer at his option, plaintiff assuring such would-be purchaser that it would be favored and receive the preference in disposal of the stock. On April 27th, plaintiff communicated by wire with Mulliken, warning him against making sale or agreement of sale of his stock until his arrival in St. Louis, and advising him to come at once. which he did by the first through train, arriving in St. Louis about noon April 29th. On the evening of the twenty-eighth of April, Hanley, defendant, then personally unacquainted with plaintiff or Mulliken, having ascertained that Knapp, as agent of Mulliken, was engaged in negotiations for sale of the latter's stock, accompanied by his attorney, met Knapp at the threshold of Knapp's dwelling and the attorney introduced the parties hereto to each other, with the statement that they were about to visit Knapp respecting the Wiggins Ferry Stock; thereupon representing that he had "means of obtaining the inside figures about what the stock was doing." Hanley asked appellant to permit him to aid him in the sale of Mulliken's stock, to which appellant consented, and they agreed to meet Mulliken on his arrival the day following and co-operate in the sale of the stock for him. Pursuant to such understanding upon Mulliken's arrival, he was met at Union Station by his mother and Knapp, and they drove in a carriage to Hanley's office where, after discussing the matter in hand of effecting a sale of the stock to best advantage, they re-entered the carriage and started to an office at No. 417 Pine street, Hanley alighting en route to visit the Mercantile Trust Company, but subsequently rejoining Knapp and Mulliken at such office, Mulliken meanwhile having secured the certificates of his stock from the safe deposit box where they had been lodged for safe-keeping. Hanley left the party to ascertain if the Mercantile Trust Company would make an offer for the stock, and on his return he informed them the president of that trust company declined to make any proposition, and he (Hanley) recommended, that the sooner they made the sale to the other trust company the better, so they decided to proceed to the Mississippi Valley Trust Company for such purpose. Hanley had vainly sought a private consultation with Mulliken by inviting him into the hall. Before starting, however, Knapp momentarily left the office in search of pen and ink for Mulliken's use in indorsing the certificates and afforded Hanley the opportunity he desired and during such temporary absence, respondent asked Mulliken what was the highest price he wanted for the stock, to which Mulliken made the logical answer, as much as he could obtain, and in reply to a further question by Hanley he answered he wanted $ 800; Hanley thereupon said: "Will you divide all above that amount and ask no questions?" to which Mulliken responded in the affirmative. Knapp at that stage of the conversation between the two, returned to the office, and Knapp and Hanley then repaired to the office of the Mississippi Valley Trust Company to see what they could accomplish, Mulliken rejoining them before the consummation of the sale presently effected. When Knapp and Hanley reached the place of business of the Mississippi Valley Trust Company, they resumed negotiations for sale of the stock with a director of the Ferry Company, an ally of the Trust Company, who was introduced to Hanley by Knapp, who explained they were present about Mulliken's stock, stating both represented him, Hanley adding he would sell at $ 900 per share; at this juncture the vice-president of the Trust Company, also its general counsel, accompanied by an officer of the railroad corporation represented by such Trust Company in the acquisition of the ferry stock, were invited into the conference, an agreement prepared and entered into between Mulliken and the Trust Company, providing for the sale of the stock at $ 900 per share coupled with an understanding on part of the Trust Company to indemnify Mulliken against loss, expense or damages he might incur by not...
To continue reading
Request your trial