Lackey v. Wilder

• Decision Date: 06 January 1931
• Docket Number: No. 21412.,21412.
• Citation: 33 S.W.2d 1011
• Parties: LACKEY v. WILDER.
• Court: Missouri Court of Appeals

33 S.W.2d 1011

LACKEY v. WILDER.

No. 21412.

St. Louis Court of Appeals. Missouri.

January 6, 1931.

Rehearing Denied January 23, 1931.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be officially published."

Action by C. A. Lackey against A. B. Wilder. Judgment for plaintiff, and defendants appeal.

Affirmed conditionally.

J. C. Hoester, Jr., of Clayton, and Halbert H. McCluer and William H. Wilson, both of Kansas City, for appellant.

Clarence G. Baxter and Campbell Allison, both of Clayton, for respondent.

HAID, P. J.

This is an appeal from a judgment in favor of plaintiff, who brought suit to recover upon a contract made with the defendant.

The petition alleged that on February 4, 1926, the plaintiff and defendant entered into a written contract, under the terms of which it was agreed that defendant, in payment of services already rendered and to be rendered by the plaintiff, agreed to pay plaintiff the sum of $2,000, provided the latter did not receive payment for such services either directly or indirectly from the Wilder National Tavern System; the services rendered and to be rendered by plaintiff consisting of assisting the defendant in the promotion, founding, and organization of a corporation to be known as "The Wilder National Tavern System." It alleged that plaintiff had fully performed all of the conditions of said contract on his part to be performed, and that he had not received, either directly or indirectly, from the Wilder National Tavern System any part of said $2,000 to be paid him by defendant, and that defendant has wholly failed and refused to perform his part of said agreement, and has wholly failed to pay plaintiff any part of said $2,000.

The answer consisted, first, of a general denial; second, that plaintiff was estopped from claiming anything under said contract for the reason that there was, before the corporation to be known as the Wilder National Tavern System was chartered, a mutual agreement between plaintiff and defendant which provided that the contract sued on should be rescinded and held of no force and effect; and, third, that in December, 1927, the plaintiff received 800 shares of stock from the corporation which paid him for all his services.

The plaintiff filed a reply consisting of a general denial.

The first contention made by the defendant is that the court erred in overruling the peremptory instruction requested by the defendant at the close of the whole case. Ordinarily this would make it necessary to consider the testimony offered in the case and in considering that testimony we would have to regard the plaintiff's evidence as true, so long as it was not impossible as opposed to the physics of the case, or entirely beyond reason, and defendant's evidence would have to be taken as false where it was contradicted by that of the plaintiff, and the plaintiff would be entitled to the benefit of every reasonable inference favorable to his case, which the evidence tended to support. Stewart v. American Ry. Exp. Co. (Mo. App.) 18 S.W.(2d) 520, loc. cit. 525, and cases cited; Crowley v. St. Louis-San F. Ry. Co. (Mo. App.) 18 S.W.(2d) 541, loc. cit. 543.

The defendant concedes, however, that as to whether plaintiff fulfilled his contract and voted his stock as desired by the defendant, that as to whether and when the demands upon defendant were made to pay the $2,000 and upon the question as to whether the contract sued on was agreed to be set aside, the evidence was conflicting, and therefore, these were proper questions to be submitted to the jury.

The defendant asserts, however, that the peremptory instruction ought to have been given because the contract sued on was one opposed to public policy and therefore void as to the company and also for that reason void as to the defendant. The contention is based upon the fact that the contract provided in paragraph 4 thereof that, "the remuneration herein called for is in addition to, and not in lieu of, shares of stock in the company which it has already been agreed the party of the first part shall have," and the fact that in paragraph 7 of the contract it was agreed that the amount of stock referred to in paragraph 4 as coming to the party of the first part is 60 shares and that "the party of the first part agrees to vote these sixty shares of stock as directed by A. B. Wilder for a period of two years."

The record shows that the plaintiff, in accordance with paragraph 4 of the contract, did acquire 60 shares of stock shortly after the incorporation of the Wilder National Tavern System, the subscription for which appeared upon the subscription list, but the record is silent as to whether or not this stock was paid for, and, if paid for, by whom. Since defendant undertook that plaintiff should have that amount of stock, we think it is fairly to be inferred that defendant paid for such stock, or obligated himself to pay for it, because in paragraph 7 of the contract it was agreed that the party of the first part should vote such stock as directed by A. B. Wilder for a period of two years, which plaintiff would not have been obligated to do if he had purchased the stock himself. There was no provision that the stock should be issued by the company to plaintiff without payment being made therefor, and therefore it cannot be said, in the absence of evidence to the contrary, that it was issued otherwise than as permitted by law.

The record further discloses that in December, 1927, the company issued to plaintiff 808 shares of its no par value common stock, but the record also discloses that this stock was not issued to him pursuant to the contract with the defendant nor as compensation under his contract with the defendant but in consideration that he continue as secretary-treasurer of the company after he had tendered his resignation as such.

The contract further provided that plaintiff "is to receive an additional Three Thousand ($3,000.00) Dollars payment to be made after the Wilder National Tavern System has been incorporated a year in a ratio of 20% of the gross receipts of the Wilder National Tavern System, said services to consist of assisting in promoting and founding the aforesaid company, perfecting the organization of the same and the services rendered to A. B. Wilder as the originator of this corporation." It is true that this amount is to be paid upon a ratio of the gross receipts of the company, after it has been in existence for a year, but the only purpose evidenced by the contract is the method of...