Liew v. Barrett & Barrett Beverage Company
| Decision Date | 08 June 1898 |
| Parties | Van Liew, Administrator de bonis non of Cargill's Estate, Appellant, v. Barrett & Barrett Beverage Company |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Affirmed.
E. L Noyes for appellant.
(1) Plaintiff chose the proper and only remedy. State ex rel v. Rombauer, 46 Mo. 155; Trust Co. v. Home Lumber Co., 118 Mo. 447; State ex rel. v. St. Louis Paint Co., 21 Mo.App. 526; Watson v. Woody Ptg. Co., 56 Mo.App. 145; Withers v. Bank, 67 Mo.App. 115. (2) The court committed error in granting respondent a new trial. Maddox v. Maddox, 114 Mo. 35; Bunker v Hibler, 49 Mo.App. 536; Brown v. Morgan, 56 Mo.App. 382. (3) The court committed error in allowing respondent to offer evidence tending to impeach the final judgment of the probate court. Van Bibber v. Julian, 81 Mo. 618; Yeoman v. Younger, 83 Mo. 424; Nelson v. Barnett, 123 Mo. 564; Young v. Byrd, 124 Mo. 590; State ex rel. v. Gray, 106 Mo. 526. (4) If the defendant did issue to Fred C. Hey, January 7, 1892, a certificate for fifty shares of stock in defendant company, with the following indorsement on the face: "These shares are subject to a lien in favor of this company for an indebtedness due it from James Cargill amounting to $ 1,436.24 as shown by its books" -- said Hey had no right or authority to accept such a certificate. It was not binding on the estate and plaintiff did not have to tender to defendant the supposed certificate, when he made his demand that a certificate of stock should be issued to him as administrator. (5) As there was a final judgment by the probate court finding that Fred C. Hey had never received any money, property or effects belonging to the estate, such judgment was not subject to collateral attack, and could not be impeached by the testimony of Mr. Hey. Hutchinson v. Shelley, 133 Mo. 412.
Brown, Chapman & Brown for respondent.
(1) The question herein for consideration by this court is whether on the evidence before the jury and the instructions given by the court, the verdict of the jury was properly set aside, and not whether the trial court committed error in instructions or in admitting or rejecting testimony. Thompson v. Railroad, 140 Mo. 125; Standard Milling Co. v. Transit Co., 122 Mo. 269; O'Meara v. Swanson, 62 Mo.App. 71. (2) Defendant company was under no legal duty to transfer the stock or issue new certificate therefor, until plaintiff delivered to defendant for cancellation the outstanding certificate. Morawetz, Priv. Corps., secs. 186 and 187; Cook on Stock, sec. 358; Beach on Priv. Corp., sec. 670; 23 Am. and Eng. Ency. of Law, 671, 672; Galveston City Co. v. Sibley, 56 Tex. 269. (3) The indorsement on the certificate did not vitiate or impair it, and at most was no excuse or ground for releasing plaintiff from his duty to deliver the outstanding certificate for cancellation. Keller v. Brick Machine Mfg. Co., 43 Mo.App. 84. (4) Hey, administrator, made no final settlement in probate court, and that court rendered no final judgment. R. S. 1889, secs. 231, 232. (5) Appellate courts will not ordinarily weigh evidence on appeal from an order granting a new trial on the ground that the verdict of the jury was against the evidence or the weight of evidence. Bank v. Armstrong, 92 Mo. 280; Bank v. Wood, 124 Mo. 76; Bunyan v. Railroad, 127 Mo. 22; Lawson v. Mills, 130 Mo. 171; Parker v. Cassingham, 130 Mo. 349; Lee v. Geo. Knapp & Co., 137 Mo. 385; Thompson v. Railroad, 140 Mo. 125.
This is an appeal by plaintiff from an order of the circuit court of Jackson county setting aside a verdict in his favor for $ 5,000, and granting defendant a new trial. Plaintiff is administrator de bonis non of the estate of James Cargill deceased.
The defendant is a corporation duly organized under the laws of this State with a capital stock of $ 15,000.
It is alleged by plaintiff that his intestate, at the time of his death, was the owner of and entitled to fifty shares of said stock of the value of $ 5,000; that, although often requested so to do, defendant had failed and refused to transfer said stock to plaintiff as such administrator or to his predecessor; that defendant, through its officers and agents, had refused to recognize the rights of the representatives of said estate, and "had converted to its own use all the interest of the estate in and to the defendant corporation." Judgment is asked for $ 5,000, which is alleged to be the value of the stock.
The defendant's answer admitted its incorporation, and denied the other allegations of the petition.
Plaintiff introduced evidence tending to prove that Cargill was the owner of fifty shares of stock in defendant corporation; that plaintiff had demanded that a certificate for same be issued and the stock transferred to him as administrator de bonis non and that this was refused by the officers of the company. It was further shown by plaintiff that Fred C. Hey was former administrator of the estate and that he made two statements or reports to the probate court. The first was filed at the August term, 1892, in which he stated that he had received no money belonging to the estate and had paid out none. The second was presented one year later. He then reported that no property, money or effects of the estate had come to his hands, and he had paid nothing, and asked that said statement be accepted in lieu of a settlement. Both of these reports were sworn to by Hey. When the latter was filed in August, 1893, the probate court made an order that said statement be received in lieu of his "annual" settlement, and that it be approved and spread upon the records. It was also ordered that, as there was no estate, said Hey be discharged from further duties of administration and the costs be remitted. No notice was given by publication of the intention to make this report, and nothing in the nature of a final settlement was made except as above stated. Defendant, upon its part introduced Hey, the first administrator, as a witness. His testimony tended to show that he received from the corporation, while he was in charge of the estate, a certificate for the fifty shares of stock. This certificate had an indorsement upon it as follows: "These shares are subject to a lien in favor of this company for the indebtedness due from James Cargill amounting to $ 1,436.24 as shown by its books." He testified that he never received any money for the estate and he did not know whether the certificate was lost or not. He possibly might find it. His receipt for a certificate of fifty shares of stock, issued to James Cargill, April 6, 1891, was introduced, dated January, 7, 1892. Testimony was presented to the effect that defendant "always recognized the estate of Cargill as the owner and holder of fifty shares of the capital stock, subject to the by-laws of the corporation." It was claimed by defendant that its officers only declined to issue a new certificate to plaintiff until the one delivered to Hey should be returned or canceled. There were some statements made and an offer contained in some of the correspondence, that plaintiff would return the old certificate, but it was never done.
Plaintiff objected to the introduction of any evidence showing the delivery of the certificate to Hey, claiming that his settlement in the probate court until set aside in equity conclusively established the fact that the stock was not received by him. This objection was overruled. It is also...
To continue reading
Request your trial