Machen v. Cape Girardeau-Jackson Interurban Ry. Co.

• Decision Date: 13 June 1922
• Docket Number: No. 17036.,17036.
• Citation: 242 S.W. 131
• Parties: MACHEN v. CAPE GIRARDEAU-JACKSON INTERURBAN RY. CO.
• Court: Missouri Court of Appeals

242 S.W. 131

MACHEN v. CAPE GIRARDEAU-JACKSON INTERURBAN RY. CO.

No. 17036.

St. Louis Court of Appeals. Missouri.

June 13, 1922.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by Harry L. Machen against the Cape Girardeau-Jackson Interurban Railway Company. Judgment for defendant on directed verdict, and plaintiff appeals. Affirmed.

Giboney Houck, of Cape Girardeau, for appellant.

Oliver & Oliver, of Cape Girardeau, for respondent.

BIGGS, C.

An action based upon 16 promissory notes varying in amount from $100 to $400, aggregating the sum of $4,900 and interest. The notes signed by the defendant were demand notes, were payable to the order of David A. Glenn, and upon their face were stated to be nonnegotiable. They were dated at various times from March 2, 1910, to January 4, 1913. On July 24, 1915, the plaintiff purchased from the trustee in bankruptcy of said David A. Glenn all of said notes for the sum of $18, and each of them was indorsed on that date, "David A. Glenn, by W. H. Stubblefield, Jr., Trustee in Bankruptcy."

At the conclusion of a trial before a jury in the Cape Girardeau court of common pleas, the court at the request of defendant instructed the jury that under the pleadings and the evidence they should render a verdict in favor of the defendant, which the jury did as directed. Judgment being rendered for the defendant, based upon the verdict, plaintiff, after an unavailing motion for new trial and in arrest of judgment, has appealed.

The petition in 16 counts, each bottomed upon one of the notes, is in the usual form. Defendant's answer avers that each of the notes sued on recite on their face that they are nonnegotiable and were payable to David A. Glenn, who at the time of their execution was the owner of a one-seventh interest in all of the capital stock of the defendant company, a corporation organized under the laws of Missouri; that like notes for like sums and on the same dates were made, executed, and delivered to each of the other seven stock-holders of said company; that said defendant railway company was being operated at a loss to the owners and holders of its stock, and on February 17, 1913, it was agreed by and between all of the stockholders of the defendant company, including said Glenn, that they should sell their stock in said company to the Light & Development Company of St. Louis for the sum of $153,000. That said stockholders on the 17th day of February, 1913, entered into a written contract with said Light & Development Company by which they and each of them promised and agreed to sell to said Light & Development Company all of their stock in the defendant company for the said sum of $153,000, and would pay off or assume all of the indebtedness then existing and outstanding against the defendant railway company. That said stockholders agreed to deliver to said Light & Development Company all of the capital stock of the defendant railway company, all its bonded indebtedness, and agreed to pay off or assume all of the debts and obligations then existing against the said railway company.

It is further averred that in pursuance of said contract, and on December 26, 1913, the said David A. Glenn and all of the other stockholders of the defendant railway company tendered in writing to said Light & Development Company all of the stock and bonds of said railway company, and then and there surrendered and transferred all of the notes that had been issued to them severally by the said defendant railway company, including the notes sued upon; that afterwards said Light & Development Company refused to perform its part of said contract with the said Glenn and the other stockholders, and thereupon a suit was instituted in the circuit court of Cape Girardeau county for the purpose of compelling said Light & Development Company to specifically perform its contract and to take over said stock and bonds of said railway company; that said suit resulted in a decree favorable to said stockholders, requiring said Light & Development Company to accept said stock and bonds and the surrendered obligations of said railway company, including the notes sued, upon; that afterwards said decree of the circuit court was affirmed in the Supreme Court of Missouri, and that said Light & Development Company has since then taken over all of the stock and bonds of the said railway company from said stockholders or their assignees, and that said Light & Development Company is now entitled to the possession of said notes for the purpose of canceling the same.

It is then stated in the answer that after the making of the said contract on February 17, 1913, and after the execution of the assignment and setting over of the notes herein sued on, December 26, 1913; the said Glenn became a bankrupt, and William H. Stubblefield, Jr., was appointed his trustee in bankruptcy; that said trustee found in the possession of said bankrupt the notes sued upon, and thereupon did list and afterwards attempt to offer said notes for sale as a part of the assets of said estate; that the plaintiff pretended to purchase said notes at public sale made by said trustee, and that said notes were bid off by said plaintiff for the sum of $18; that the plaintiff knew that said Glenn was a bankrupt, knew that said notes were nonnegotiable, and knew that the trustee of said bankrupt had joined as a party plaintiff in the suit against the Light & Development Company for specific performance requiring said Light & Development Company to take over all of the interest that said David Glenn had in the stock of the said railway company, and to otherwise perform its contract.

It is further set forth in said answer that long before the said sale by said trustee the said notes had been surrendered and set over by said Glenn on the 26th day of December, 1913, to the Light & Development Company, as were all of the other notes of the other stockholders in said railway company, in pursuance of their agreement of February 17, 1913, to pay or assume all of the debts of the defendant company, so that said trustee of David A. Glenn had no title, claim, or interest in said notes, and had no right to sell or offer to sell same, and the plaintiff herein acquired...