Lederer v. Morrow

• Decision Date: 29 June 1908
• Citation: 111 S.W. 902,132 Mo. App. 438
• Parties: LEDERER v. MORROW et al.
• Court: Missouri Court of Appeals

111 S.W. 902

132 Mo. App. 438

LEDERER v. MORROW et al.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

1. EVIDENCE — PARTNERSHIP — PARTNERSHIP BOOKS — EVIDENCE AGAINST PARTNERS.

It is a general rule that entries in partnership books, made in the ordinary course of business, are admissible in actions in favor of third persons against the partners.

2. SAME — CORPORATE BOOKS — EVIDENCE — ADMISSIBILITY.

In an action against stockholders, directors, and officers of a corporation for fraudulent representations as to the solvency of the corporation, inducing a purchase of corporate stock, the books of the corporation, made by its secretary from other books and not made at

the time of the various transactions, are admissible against defendants.

3. TRIAL—ACTION FOR RECOVERY OF MONEY— ASSESSMENT OF RECOVERY — QUESTION FOR JURY.

Where a verdict is for plaintiff in an action for the recovery of money only, it is for the jury to assess the amount of the recovery.

4. APPEAL AND ERROR—HARMLESS ERROR— ERRONEOUS INSTRUCTIONS.

Error in an instruction, arising from the fact that it assumes an uncontradicted fact, is not reversible.

5. TRIAL—INSTRUCTIONS—INVADING PROVINCE OF JURY.

In an action for the recovery of money only as damages for fraudulent representations, it is, under the statute, the duty of the jury to fix the amount of the recovery, and an instruction authorizing the jury to assess plaintiff's damages at a specified sum, together with interest, is erroneous, as invading the province of the jury.

Appeal from Circuit Court, Barton County; L. W. Shafer, Judge.

Action by Frank Lederer against G. G. Morrow and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Silvers & Dawson, for appellants. H. W. Timmonds and O. T. Hamlin, for respondent.

BROADDUS, P. J.

This is an action based upon the alleged fraudulent acts of the defendants. In September and prior thereto of the year 1906, there was a corporation in Springfield, Mo., doing business under the name of the Springfield Shirt Company, engaged in the manufacture of shirts, of which defendant Morrow was president and general manager, the defendant McCammon was vice president, and one Humphreys a stockholder owning three shares of stock. Plaintiff alleges that said defendants represented to him that said stock was worth more than par, and that the company was in good condition and had $1,800, in its treasury to be distributed as dividends; that defendants also requested plaintiff to buy two other shares of stock in said company, which they agreed to issue and deliver to him; that relying upon the representations of defendants he bought the three shares of said Humphreys paying him $300 for them, and also paid to defendants as officers of the company the sum of $200, for two other shares, and defendants agreed to have the three shares of Humphreys transferred on the books of the company to him and to deliver to him two other shares of said stock, but that they failed to do either. Plaintiff alleges that the representations of the defendants as to the solvency of said company, and that there was $1,800 in its treasury to be distributed as dividends was untrue and known to the defendants to be untrue; and that it was not true that said stock was of par value. He seeks to recover back as damages the $500 paid as aforesaid.

The evidence of plaintiff tended to show that the company was insolvent at the time, and in January following it was adjudged bankrupt, and that defendants by reason of their connection with the company must have known of its condition at the date of his purchase of said stocks. On the contrary, the defendants introduced evidence tending to show that the company was solvent at the time mentioned, and that they were acting on such belief. The plaintiff introduced the books of the company to show its condition, to which defendants objected because they were not shown to be the books of original entry and were not made and kept by defendants. They were shown to have been transcribed from other books and not made at the time of the various transactions. The plaintiff in...