Mayger v. Carlander

• Court: Missouri Court of Appeals
• Writing for the Court: Nipper
• Citation: Mayger v. Carlander, 261 S.W. 692 (Mo. App. 1924)
• Decision Date: 06 May 1924
• Parties: MAYGER v. CARLANDER.

261 S.W. 692

MAYGER v. CARLANDER.

St. Louis Court of Appeals. Missouri.

May 6, 1924.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by George E. Mayger against G. Carlander. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

Eustace C. Wheeler, of St. Louis, for respondent.

NIPPER, C.

Plaintiff brought suit before a justice of the peace to recover on two notes, dated November 30, 1910, for the sum of $500 each, payable three months after date, with 6 per cent, interest from date. When the cases were appealed to the circuit court, they were consolidated and tried as one. There was a verdict and judgment for defendant, and plaintiff appeals.

The petition was in the usual form. The answer admitted the execution of the notes, and alleged that they were given for the purchase price of 1,000 shares of the capital stock of the St. Louis Milling & Mining Company. As a further defense to plaintiff's cause of action, the defendant alleged that he was induced to purchase said 1,000 shares of stock through certain misrepresentations and fraud on the part of plaintiff, as follows: (1) That plaintiff represented to defendant that said company had paid dividends in the past on such shares, whereas, in truth and in fact, it had not; (2) that plaintiff fraudulently misrepresented to the defendant that the market value of said shares of stock was, at the time, $4 per share, and that said shares were selling at occasional sales for 30 cents per share; (3) that plaintiff represented to defendant that there were large quantities of ore in the property, which representations were untrue. The answer further contained a counterclaim, but this was later dismissed by plaintiff, and it is unnecessary to refer to that.

Plaintiff, to sustain the issues on his part, offered in evidence the notes sued upon, and the constable's return showing service on November 1, 1920. The defendant then testified that he had been a salesman for the Merrell Drug Company since 1910; that about November 30, 1910, he purchased 1,000 shares of stock in the St. Louis Milling & Mining Company from plaintiff; that Ralph E. Hays, an employs of the drug company, took him to plaintiff's office and introduced him to plaintiff; that Hays told him he owned 750 shares and thought it was a good buy, and, believing Hays, he decided to make this purchase. When defendant called on plaintiff, plaintiff told him that he was leaving for Montana that afternoon and the transaction would have to be closed that evening; that plaintiff told him the mill would be in operation by March, 1911; that the company was well fixed financially, and the mine had plenty of gold in it; that he would guarantee defendant that the stock would pay 50 cents a share per month. Plaintiff was secretary and treasurer of the company.

Defendant further testified that plaintiff told him he needed some money for Christmas, but did not know where to put this stock up so he could raise the money on it; that the stock was put up as collateral; that plaintiff told him that the old company had paid big dividends, but did not say the present company had paid any such dividends; that plaintiff told him that many influential families in St. Louis had made money out of a mine which was near this one; that he gave plaintiff the notes in question; that he had never `received any dividends on the stock. Defendant further testified that he saw plaintiff a few days after the transaction, and accused him of defrauding him, because the stock was not worth $2 per share. He then demanded that plaintiff give him his money back. Plaintiff told him he did not have any money. Defendant testified that about five years after this he met plaintiff in front of the post office in St. Louis, and wanted him to make his promise good to take the stock back, at which time plaintiff told him that he was too late.

On cross-examination, defendant testified that he had paid assessments on the stock, and still owned it; that plaintiff had told him that the company had never paid any dividends, but the other company, "years back," had paid large dividends. The market price for the St. Louis Milling & Mining Company stock on November 30, 1910, was shown to be 40 or 50 cents. That was all the evidence offered on behalf of defendant.

The evidence offered in rebuttal on the part of plaintiff was to the effect that defendant came to him at the time of purchasing the stock, and told him that he wanted to buy some stock in this mining company; that defendant went away after the arrangements were made for the purchase, and returned and made out two 90-day notes; that plaintiff made no statements as to the selling price of the stock; that at the time plaintiff sold the stock the company had two locations and two mills; that shares of this stock had been sold for as high as $4 per share; that he had made some effort to collect the notes, and finally turned them over to his attorney for collection.

The court, by instructions given at...