Maescher v. Rosevear

• Decision Date: 15 June 1926
• Docket Number: No. 19251.,19251.
• Citation: 285 S.W. 102
• Parties: MAESCHER v. ROSEVEAR et al.
• Court: Missouri Court of Appeals

285 S.W. 102

MAESCHER v. ROSEVEAR et al.

No. 19251.

St. Louis Court of Appeals. Missouri.

June 15, 1926.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Suit for libel by Albert Maescher against Ernest M. Rosevear and another. Judgment for plaintiff, and defendants appeal. Affirmed.

John A. Nolan, of Clayton, and Robert S. Harbisdn, of St. Louis, for appellants.

Davis Biggs, W. K. Koerner, and Lloyd L. Adams, all of St. Louis, for appellee.

NIPPER, J.

This is a suit for libel, brought by plaintiff, who was formerly president of a corporation called the Universal Ironing Machine Company. The suit was brought against defendants Rosevear and Perry, who were directors and also vice president and secretary, respectively. Prior to October 6, 1922, plaintiff had devoted a portion of his time to developing a household ironing machine. He had applied for certain patents thereon. On October 6, 1922, plaintiff wrote a letter to his codirectors, the object and purpose of which was to have an understanding relative to these patents. Defendants objected to plaintiff's idea and suggestions as to the use of these patents, and the controversy between plaintiff and defendants with respect to the ownership grew somewhat bitter. Plaintiff was deposed from his position of president of the company, and defendant Rosevear became president, and Perry, secretary and treasurer. After plaintiff was deposed from the presidency, defendants called in the attorney for the ironing machine company, and, according to their testimony, requested him to take certain steps with respect to advising an accident and indemnity company of certain alleged misconduct on the part of plaintiff; plaintiff having given a surety bond to the ironing machine company. The bond provided that, upon the discovery of any dishonest act on the part of the employé, the employer should give immediate written notice to the home office at Hartford. The provisions of the bond further required the proof of loss to be made under oath within 3 months, and claims to be made within 15 months after the termination of the bond.

The petition alleges that defendants, through their authorized agent and attorney, who was acting at their direction, did publish to the Hartford Accident & Indemnity Company, Lawton-Byrne-Bruner Agency Company, Thomas L. Farrington, and A. W. Schroeder, a certain false, defamatory, malicious, and libelous letter, dated June 1, 1923, and reading as follows:

"I represent the Universal ironing Machine Company of this city, for whom you executed fidelity bond No. 156 on the 25th day of February, 1921, agreeing to indemnify us, for consideration of premium to be paid, against loss through fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction, or willful misapplication committed by A. Maescher, then in our employ.

"This is to notify you that we have recently discovered that during the incumbency of Mr. Maescher as president of our corporation, without authority or permission and contrary to the orders of the board of directors, Mr. Maescher contracted for various work and materials with the Lehmann Machine Company of this city, which work and materials were furnished upon his individual, verbal request in connection with various drawings, models, and patterns upon which Mr. Maescher was working on his own account, with a view of procuring a patent thereon in his own name, which patent was subsequently secured, and that Mr. Maescher represented to the Lehmann Machine Company that all of the said work and materials were for the use and benefit of our corporation. These various materials and labor were furnished by the machine company between March 20 and August 8, 1922, total amount of which was seven hundred fifty-seven dollars and eighty-five cents ($757.85). No member of the board of directors, nor any other person connected with our corporation knew anything about the incurring of this indebtedness by Mr. Maescher, nor the existence of the account with the Lehmann Machine Company until a short time ago, when it first came to the attention of our secretary.

"We furthermore find that, in connection with the said account, Mr. Maescher diverted certain notes of our corporation named as payee, amounting to two hundred sixty-two dollars fifty cents ($202.50), indorsing the corporation name thereon and turning them over to the above-named machine company to be credited against the said...