Longworth v. Kavanaugh

• Decision Date: 05 March 1921
• Parties: JAMES LONGWORTH v. WILLIAM K. KAVANAUGH, Appellant
• Court: Missouri Supreme Court

228 S.W. 83

286 Mo. 545

JAMES LONGWORTH v. WILLIAM K. KAVANAUGH, Appellant

Supreme Court of Missouri

March 5, 1921

Appeal from St. Louis City Circuit Court. -- Hon. William T. Jones Judge.

Affirmed.

A. & J F. Lee and James A. Waechter for appellant.

(1) The court erred in refusing to give defendant's instruction for nonsuit offered at the close of plaintiff's case, and the instruction offered at the close of the entire case because the testimony, so far as it tended to establish any contract, tended: (a) To establish a contract that was void and unenforceable in law, a purely lobbying contract, against public policy and sound morals. Porter v. Jones, 52 Mo. 399; Nash v. Kerr-Murray Mfg. Co., 19 Mo.App. 1; Ridenbaugh v. Young, 145 Mo. 280; Tool Company v. Norris, 69 U.S. 45; Marshall v. Railroad Co., 16 Howard, 314; Gill v. Withorne & Davis, 12 La. Ann. 219; Harris v. Roof's Exr., 10 Bart. 489; Pease v. Walsh, 49 Abb. Pr. 269; Critchfield v. Asphalt Co., 174 Ill 466; Harris v. Simonson, 28 Hun, 318; Hovey v. Storer, 63 Me. 486; Oscanyan v. Winchester Co., 103 U.S. 261; Newman v. Davenport, 9 Baxt. 538. (b) The alleged contract was void as suppressing competition. Hyer v. Traction Co., 80 F. 839; Engleman v. Skrainka, 14 Mo.App. 438; Durfee v. Moran, 57 Mo. 379; Wooten v. Hinkle, 20 Mo. 290; Hook v. Turner, 22 Mo. 333; Lawnon v. Bradley, 13 Mo.App. 361; In re Salmon, 145 F. 649; Finch v. Granite Co., 187 Mo. 244. (2) The court erred in giving to the jury plaintiff's Instruction No. 1, because as applied to the testimony and evidence in this case, it was erroneous, misleading and confusing. (2) Plaintiff's Instruction No 2 is erroneous. (3) The court erred in directing or in permitting the foreman of the jury to change the verdict as rendered by the jury when first handed into court, and, thereafter, when a second time handed into court; so that the verdict accepted by the court is the verdict of the court or of the court and the foreman of the jury, and not the verdict of the jury.

Robert E. Collins and Edward D'Arcy for respondent.

(1) The trial court committed no error in overruling defendant's instruction for a nonsuit offered at the close of plaintiff's case and the instruction offered at the close of the entire case. While there was evidence offered by both sides, the jury having found in favor of the plaintiff, particularly on the second trail of the case, and the trial court having overruled the defendant's motion for a new trial, the sufficiency of the evidence will not be considered by this court. (2) The contract between the plaintiff and the defendant was not a lobbying contract or against public policy or sound morals. Hyer v. Traction Co., 168 U.S. 82; 9 Cyc. 492, note 82; Smith v. Greenlee, 2 Dev. (N. C.) 126; Piatt v. Oliver, 44 U.S. 411; Kelerher v. Henderson, 203 Mo. 498. (3) The defense that the contract sued on is against public policy is a special defense which must be pleaded and cannot be shown under a general denial. Musser v. Adler, 86 Mo. 445; Moore v. Ringo, 82 Mo. 473; Kelerher v. Henderson, 203 Mo. 498. (4) The appellant is estopped to assert the invalidity of an agreement between himself and the syndicate interested in the St. Louis Belt & Terminal Railway Company to combine their efforts to procure a franchise. Vette v. Geist, 155 Mo. 27; Kelerher v. Henderson, 203 Mo. 498. (5) The verdict as filed was the verdict of the jury.

BROWN, C. Ragland and Small, CC., concur. Graves, D. E. Blair, Elder and Higbee, J. J., concur; J. T. Blair, J., concurs in result; Walker, C. J., and Woodson, J., dissent.

OPINION

In Banc.

BROWN C.

This suit was instituted in the Circuit Court for the City of St. Louis on March 15, 1905, and has been once before in this court (190 S.W. 315). It was tried to a jury in said circuit court at the April term, 1907, resulting in a verdict for the plaintiff in the sum of eleven thousand two hundred ninety-three dollars and thirty-three cents, which was set aside on motion on the ground that it was against the weight of the evidence. An amended petition was afterward filed and stricken out for variance. Plaintiff declined to plead further and appealed to this court from the final judgment rendered against him, which we reversed, and remanded the cause. Another trial was begun on March 12, 1917, resulting in a verdict and judgment for plaintiff in the sum of $ 11,671.91, from which this appeal is prosecuted. After the verdict and before final judgment, the plaintiff, by leave of court filed his fifth amended petition as provided in Section 1849, Revised Statutes 1909.

This petition omitting introduction and formal conclusion is of the following tenor:

"That during the month of May, 1899, the plaintiff and defendant William K. Kavanaugh and John B. Clayton, L. R. Wilfley, W. M. Mitchell, James Y. Lockwood and other persons whose names are unknown to plaintiff, said unknown persons being represented by the defendant and cannot therefore be stated, associated themselves together, for the purpose of building, constructing, maintaining and operating a single or double track railway in and through the County of St. Louis in the State of Missouri, and for the purposes of such railway of obtaining from the County of St. Louis in said State, a grant, franchise or right to build, construct, maintain and operate such railway; that it was orally agreed by and between the plaintiff and the defendant William K. Kavanaugh that the plaintiff should own and have a one-sixteenth interest or part in whatever rights, property or interests said association should thereafter acquire.

"That it was thereafter determined and agreed between defendant and his said associates that instead of endeavoring to secure a franchise from the County of St. Louis to themselves directly, said enterprise should be carried out by assisting another corporation known as the Central Belt Railway Company, a corporation organized under the laws of the State of Missouri and by its charter authorized to build, construct, maintain and operate a single or double track railway in and through the County of St. Louis and State of Missouri, to secure said franchise, and by making an arrangement with the parties interested in said company for securing to defendant and his associates the control of said Central Belt Railway Company and said franchise and rights.

"That plaintiff, defendant and their associates did work together with the parties interested in said Central Belt Railway Company, to secure said franchise in the name of said Central Belt Railway Company, and the fact that said two interests were working together was well known and understood by said County Court of St. Louis County, and said County Court desired said co-operation between said two interests, in order that there might be sufficient financial backing behind said Central Belt Railway Company, to justify the granting of a franchise to it.

"That on, to-wit, October 4, 1899, said County Court of St. Louis County granted said franchise to the said Central Belt Railway Company for a belt line railway as above set out.

"That as a result of the plan above set out, the stockholders of said Central Belt Railway Company did on or about October 18, 1899, enter into a contract with defendant, in which it was agreed that the stock of said Central Belt Railway Company should be transferred to defendant, that defendant should reorganize and finance the enterprise of constructing said belt railroad, and that defendant and his associates should own thirteen-sixteenths of said reorganized company, and said Central Belt stockholders should own three-sixteenths thereof.

"That pursuant to said contract, the stock of said Central Belt Railway Company was, on or about said October 18, 1899, duly transferred and delivered to defendant and his associates, practically the whole thereof being transferred to and issued in the name of William K. Kavanaugh, trustee.

"That on or about March 8, 1900, defendant and those associated with him acquired by purchase from said original stockholders of said Central Belt Railway Company, whatever right, title and interest they still retained in the stock of said company.

"That thereafter and in about the month of March, 1902, defendant and his associates, the then owners of the entire capital stock of the Central Belt Railway Company, caused another corporation to be organized under the laws of the State of Missouri, known as the St. Louis Belt & Terminal Railway Company, which was authorized under its charter to build, construct, maintain and operate a railway in and through the County of St. Louis, Missouri.

"That on or about the 31st day of May, 1902, said association or syndicate, composed of defendant and his associates, caused said Central Belt Railway Company, without consideration moving to it, to assign, transfer and convey to said St. Louis Belt & Terminal Railway Company the said grant, right and franchise given to it as aforesaid by said St. Louis County, Missouri.

"That during all the above-mentioned times the interest of the plaintiff in the stock of both the Central Belt Railway Company and the St. Louis Belt & Terminal Railway Company were held by defendant in his own name, but for the use and benefit of the plaintiff.

"That from the time the capital stock of said Central Belt Railway Company was, about October 18, 1899, placed in the name of defendant and his associates, as aforesaid, defendant and his associates other than plaintiff were in control of said stock and of the operations of said Company, and were also, from the time of the organization of said St. Louis Belt & Terminal Railway Company, in control of the stock, or a large part thereof, and of the operation of the said St. Louis...