Laughlin v. Leigh

• Decision Date: 12 February 1910
• Citation: 126 S.W. 743,226 Mo. 620
• Parties: LAUGHLIN v. LEIGH.
• Court: Missouri Supreme Court

126 S.W. 743

226 Mo. 620

LAUGHLIN v. LEIGH.

Supreme Court of Missouri. Division No. 2.

February 12, 1910.

Rehearing Denied March 15, 1910.

1. APPEAL AND ERROR (§ 501) — MATTERS TO BE SHOWN BY RECORD — EXCEPTIONS.

Refusal to allow an amendment of a pleading is not reviewable, where the abstract contains no exceptions to the ruling.

2. PLEADING (§ 258) — ALLOWANCE OF AMENDMENTS — DISCRETION OF COURT.

Under the statute relating to amendments to pleadings, the court is not bound to permit on the eve of the trial of the case an amended answer which substantially changes the defense.

3. PLEADING (§ 261) — AMENDED ANSWER — CHANGE OF DEFENSE.

Where, in a suit to require defendant to account for and turn over corporate bonds, the answer pleaded in bar a judgment for defendant in an action in a sister state brought by plaintiff to require defendant to transfer corporate stock, and alleged that the issues in the two actions were the same, the refusal to allow an amended answer setting up a plea that plaintiff had split up his right of action, in that his right to the bonds was involved in the suit involving his right to the stock, offered on the eve of the submission of the case on the evidence including the judgment of the appellate courts in the sister state reversing the judgment for defendant and rendering judgment for plaintiff, was not erroneous, because the proposed amendment was a departure from the theory of the original answer.

4. ABATEMENT AND REVIVAL (§ 6) — ANOTHER ACTION PENDING — PRIORITY OF OTHER ACTION.

Where a suit to require defendant to account for and turn over to plaintiff corporate bonds, or the value thereof, was begun before a similar action in a sister state to compel the transfer of corporate stock in the hands of defendant, a plea setting up that plaintiff had split up his right of action on the ground that his right to the bonds and stock depended on the same contract was not available as a defense, but, if available at all, was available only in the court of the sister state.

5. CONTRACTS (§ 28) — EVIDENCE — SUFFICIENCY.

Where a stockholder, who by his votes and the votes of proxies obtained by him procured the adoption of a contract between the corporation and a third person, claimed, by virtue of a parol collateral agreement with the third person, to be jointly interested in the contract executed and carried on in the name of the third person with the corporation, he must establish the collateral agreement by clear, cogent, and satisfactory evidence.

6. CONTRACTS (§ 28) — EVIDENCE — SUFFICIENCY.

Evidence held not to establish a parol agreement whereby a stockholder became jointly interested in a contract executed and carried out in the name of another with the corporation.

7. GIFTS (§ 49) — EVIDENCE — SUFFICIENCY.

Evidence held not to show that one who obtained bonds of a corporation under a contract with the corporation, adopted by the votes of a stockholder and proxies obtained by him, gave any part of the bonds to the stockholder.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Henry D. Laughlin against Edward B. Leigh. From a judgment for plaintiff, defendant appeals. Affirmed.

Johnson, Allen & Richards, for appellant. Randolph Laughlin and Lee Mudd, for respondent.

GANTT, P. J.

This is an appeal from the judgment of the circuit court of the city of St. Louis on the 10th day of April, 1906.

The suit was one in equity, and there were two counts in the amended petition on which the cause was tried. The first count was for an accounting and judgment for certain mortgaged bonds of the National Hollow Brake Beam Company and other securities alleged to have been received by the defendant in trust for the plaintiff. There was a final judgment for the defendant on the issues joined on that count, and the plaintiff has not appealed therefrom, so that count is not involved in this appeal. In the second count plaintiff avers that the defendant during January, 1899, received from the American Trust & Savings Bank, at Chicago, Ill., as plaintiff's agent and for plaintiff's account, 272 mortgage bonds, with certain interest coupons attached, of the Chicago Railway Equipment Company, each of the par value of $500, and known and numbered as follows:

                 --------------------------------------------------
                     No.    |          |
                  received. |  Series. |       Numbers
                 -----------|----------|---------------------------
                      2     |    B     |  29 and 30
                     10     |    D     |  21 to 30 both inclusive
                     10     |    F     |  21 to 30   "     "
                     30     |    G     |   1 to 30   "     "
                     20     |    H     |  11 to 30   "     "
                    100     |    K     |   1 to 100  "     "
                    100     |    M     |   1 to 100  "     "
                 --------------------------------------------------
                

And also received from the said bank, 272 interest coupons which had previously been detached from said bonds, and had collected them and their interest coupons, amounting in the aggregate to $136,000, and that defendant had accounted to the plaintiff for 67 of said bonds of the aggregate par value of $33,500, and no more, and that defendant was wrongfully withholding the residue of said bonds, and refused to account to plaintiff for any part of the same. The petition concluded with this prayer: "Plaintiff prays the court to ascertain the number of said bonds still in defendant's possession, but belonging to plaintiff, the identity of all such bonds, the amount of interest collected on account of them, and the amount collected by him on those for which he did account, and to render its judgment in favor of plaintiff and against defendant, requiring him to account for and turn over to plaintiff all of plaintiff's bonds still in his possession with the coupons attached thereto, or to pay plaintiff the amount of the value thereof, together with the amount of interest collected or received by him on each or all of them with interest on such collections from the dates of their respective payments and for costs." The answer pleads with great detail that plaintiff derived his title to said bonds through a written contract from himself and the Chicago Railway Equipment Company; that thereafter the plaintiff entered into another contract with the National Hollow Brake Beam Company; that the two contracts together were known as the "Rent Readjustment Matter"; "that, before said agreements between plaintiff and said two companies were entered into, it was agreed by and between plaintiff and this defendant that the said agreements were to be taken or made in plaintiff's name alone, but that the plaintiff and this defendant should together carry out said plan and agreements, and on joint account, and jointly bear the burden thereof and share the benefits and profits arising therefrom, and that after their said individual indebtedness to and holdings of shares of stock in said National Hollow Brake Beam Company had been equalized, that they should be the joint owners of all the shares of stock and the assets of said company, share and share alike, as well as the joint owners of the said mortgage bonds of the Chicago Railway Equipment Company which were not disposed of or used in purchasing or acquiring the outstanding shares of stock in the said National Hollow Brake Beam Company at par in the manner in said agreement specified."

The further answer pleads that the defendant attended to and carried out the details of said agreement; that stock of the National Hollow Brake Beam Company to the amount of 26,223 shares was purchased in part by means of said bonds, which left 362 of said bonds undisposed of; that said 26,223 shares of stock and said 362 bonds under the terms of the said agreements so made by plaintiff with the said Chicago Railway Equipment Company and the said National Hollow Brake Beam Company, and said agreement between plaintiff and this defendant became and were the joint property of plaintiff and this defendant; that thereafter defendant received the bonds, and accounted for and delivered to plaintiff 150 thereof, and with plaintiff's full knowledge retained 150 of said 362 bonds as and for his share thereof; that thereafter the bank (in whose possession they were) delivered 10 of said bonds to plaintiff and 10 to defendant, and that plaintiff replevied 10 more from said bank; that the remaining 32 of said bonds were sold; and that defendant accounted to plaintiff for one-half the proceeds thereof. The answer further pleads that the defendant and plaintiff divided the stock of the National Hollow Brake Beam Company acquired by them as aforesaid; that thereafter the plaintiff sued the defendant for defendant's half of said stock; that defendant appeared and made defense, putting in issue the title to said stock; that the issues and facts involved in said suit are, or were, the same as the issues and facts involved in the cause of action stated and relied upon by plaintiff in the second count of his petition herein; that the cause was tried, and final judgment entered in favor of defendant, adjudging him to be the owner of said stock; wherefore defendant pleads said judgment in bar of plaintiff's right of action under the second count.

The answer finally pleads that the plaintiff's claim to the stock and bonds was a single right of action, and that by bringing two suits the plaintiff has split up said single cause of action, and is therefore estopped from maintaining his present action. The answer concludes with a counterclaim against the plaintiff for $2,000 on account of bonds alleged to have been sold by the defendant to the plaintiff.

The reply admits the source of plaintiff's title to the bonds substantially as alleged in the answer; denies the alleged private agreement or contract between plaintiff and defendant; denies that any bonds were ever retained by defendant as and for his share thereof; alleges that 150 of them were retained by him under an option, which was...