Mayger v. Nichols

• Decision Date: 08 December 1914
• Docket Number: No. 13819.,13819.
• Citation: 171 S.W. 593
• Parties: MAYGER v. NICHOLS.
• Court: Missouri Court of Appeals

171 S.W. 593

MAYGER v. NICHOLS.

No. 13819.

St. Louis Court of Appeals. Missouri.

December 8, 1914.

1. CORPORATIONS (§ 492) — LIABILITY OF CORPORATION FOR TORT OF AGENT.

Where the secretary of a corporation converted corporate stock sent in to be transferred on the books, the corporation is not liable for his act, unless he was acting for the company.

2. JUDGMENT (§ 701) — PERSONS CONCLUDED — SECRETARY OF CORPORATION.

The holder of corporate stock mailed the certificate to the secretary for transfer on the books, and the secretary converted the shares. Held, that as the corporation was not liable for the tort of the secretary, unless he was acting for its benefit, and as there is no privity between a master and servant where the subject of the litigation is one not concerning the employment, the judgment in favor of the corporation was not conclusive against the right of the shareholder to recover from the secretary.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by George E. Mayger against John R. S. Nichols. From a judgment sustaining demurrer to the reply, plaintiff appeals. Affirmed.

Frank Y. Gladney, of St. Louis, for appellant. Frank E. Ritchey and Campbell Allison, both of St. Louis, for respondent.

NORTONI, J.

This is an action in trover as for conversion. The court sustained a demurrer to plaintiff's reply to defendant's counterclaim, and plaintiff appeals from that judgment.

Plaintiff sued defendant as for the conversion of 430 shares of stock in the St. Louis Mining & Milling Company of Montana, said to be owned by him. Among other things, defendant answered by setting up a counterclaim to the effect that plaintiff converted to his own use 70 shares of stock in the same corporation owned by him. In reply to this counterclaim, plaintiff pleaded, as a bar to the right of recovery for the 70 shares of stock, a former adjudication in a suit wherein the present defendant was plaintiff and the St. Louis Mining & Milling Company of Montana was defendant. The court sustained a demurrer to this reply in the view that the subject-matter of defendant's counterclaim is not res adjudicata because of the former suit between defendant as plaintiff and the corporation as defendant.

It appears that plaintiff is the secretary of the St. Louis Mining & Milling Company of Montana, and defendant was an agent engaged in selling stock for that corporation. Defendant insists that the 500 shares of stock (the conversion of 430 of which is declared upon in plaintiff's petition and the conversion of the 70 shares of which is declared upon in his counterclaim) were given to him by the corporation as a bonus. On the other hand, plaintiff insists the 500 shares of stock belonged to him, and that he merely loaned them to defendant for a purpose. At any rate, it appears defendant mailed 70 of the shares of stock to plaintiff, as secretary of the mining company, with the request to cause them to be transferred on the books, and plaintiff retained them as his own. Thereafter defendant, as plaintiff, sued the St. Louis Mining & Milling Company in conversion for the value of the 70 shares of stock, alleging that the corporation had converted them through the act of its secretary, Mayger, plaintiff here. On a trial of this issue, the finding and judgment were for the corporation. Subsequently plaintiff, Mayger, secretary of the corporation, instituted this suit against defendant as for the conversion of the remaining 430 shares of stock, and thereupon defendant in his answer counterclaimed against plaintiff as for the conversion of the 70 shares of stock before mentioned, which were involved as the subject-matter...