Melville v. Waring

• Decision Date: 06 November 1911
• Citation: 141 S.W. 12,159 Mo.App. 395
• Parties: HIRAM MELVILLE, W. B. TOOMBS, WILL VAUGHAN, E. D. JACKSON, J. F. BENTLEY, R. E. KIERNAN, JR., AUBREY R. HAMMETT and A. M. MILLS, and THE WARING MANUFACTURING COMPANY, a Corporation, Appellants, v. ED. C. WARING, Respondent
• Court: Kansas Court of Appeals

141 S.W. 12

159 Mo.App. 395

HIRAM MELVILLE, W. B. TOOMBS, WILL VAUGHAN, E. D. JACKSON, J. F. BENTLEY, R. E. KIERNAN, JR., AUBREY R. HAMMETT and A. M. MILLS, and THE WARING MANUFACTURING COMPANY, a Corporation, Appellants, v. ED. C. WARING, Respondent

Court of Appeals of Missouri, Kansas City

November 6, 1911

Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.

AFFIRMED.

Judgment affirmed.

Willard P. Cave for appellants.

(1) Appellate courts in equity cases review the evidence upon which the findings of the trial court are based. Meredith v. Meredith, 79 Mo.App. 636; Lilly v. Menke, 92 Mo.App. 354; Turner v. Overall, 172 Mo. 271; Lins v. Lenhardt, 127 Mo. 280. (2) And while an appellate court in this character of a case, will defer somewhat to the findings of the trial court, as to the facts and will ordinarily, when the facts are in doubt, solve that doubt, by adopting the findings of the trial judge; yet it is not bound to do so, and may, and often will, reach a conclusion by its own analysis of the evidence. Meredith v. Meredith, 79 Mo.App. 640; Roselle v Beckemeir, 134 Mo. 380; Clarkson v. Hatton, 143 Mo. 48; Lins v. Lenhardt, 127 Mo. 271.

M. J Lilly for respondent.

OPINION

JOHNSON, J.

Action in equity for specific performance of an alleged contract. Defendant prevailed in the circuit court and the cause is before us on the appeal of plaintiffs.

Defendant invented a washing machine, applied to the patent office for letters patent and, in the course of time, a patent was issued to him. During the pendency of his application and after he had been assured that letters would be issued, he and plaintiffs Jackson, Bentley, Kiernan, Hammett and Mills organized the plaintiff corporation to manufacture the machine. The capital stock of the corporation was two thousand dollars, divided into two hundred shares of the par value of ten dollars each. The individual plaintiffs subscribed in the aggregate for thirty shares for which they paid three hundred dollars into the treasury of the corporation and defendant subscribed for one hundred and seventy shares. He paid no money for this stock but he and his associates agreed that the right granted by him to the corporation to manufacture and sell machines was an adequate consideration for the stock issued to him. Of the stock so issued to defendant he retained one hundred and one shares as his own property and turned the remaining sixty-nine shares into the treasury of the corporation for resale to derive funds for the uses of the corporation.

The letters patent were issued to defendant a short time after the company was incorporated and began business. Three or four months later, plaintiffs, for the first time, demanded of defendant the conveyance of the letters patent to the corporation and the demand was refused on the ground that defendant had not agreed to assign the patent but only to give the corporation the right to manufacture and sell the machines without the payment of royalty or any other consideration than the stock issued to defendant. The petition alleges that "defendant agreed and promised that when said company was properly organized and incorporated he would convey by deed the aforesaid patent to such corporation so formed and chartered."

The contract in question was not reduced to writing and its terms must be ascertained from the testimony of plaintiffs on the one hand and of defendant on the other. Of course plaintiffs are right in saying as they do in their brief, that this being an equity case, we are not bound by the findings of the trial judge on issues of fact, but we do not agree with the view of plaintiffs that the weight of the evidence is against the judgment rendered in the circuit court. True, so far as mere numerical strength is concerned, the witnesses for plaintiffs outnumbered their single adversary five to one. But it is not so much quantity as quality that counts and while we have no reason to doubt the credibility of plaintiffs we find their evidence, subjected to analysis and to the test of rules applicable to cases of this character, does not sustain the specific allegation we have quoted from the petition. Where a plaintiff seeks specific performance of a contract in a court of equity instead of resorting to his action at law for damages, he finds himself confronted by quite stringent rules of evidence. A plaintiff has no absolute right to the enforcement of specific performance of a contract but the determination of the question of whether or not he shall maintain such action lies in the sound discretion of the court and "it requires a much less strength of case on the part of a defendant to resist a bill to perform a contract than it does on the part of plaintiff to maintain a bill to enforce a specific performance." [In re Ferguson's Est., 124 Mo. 574, 27 S.W. 513; Veth v. Gierth, 92 Mo. 97, 4 S.W. 432.] In the latter case it is said:

"A court of equity will not decree specific performance of a contract if not clearly established. [Paris v. Haley, 61 Mo. 453; Taylor v. Williams, 45 Mo. 80.] The principles announced by sections 769 and 770, 2 Story's Equity, apply peculiarly to this case. It is there said: 'It is important to take notice of a distinction between the case of a plaintiff seeking a specific performance in equity, and the case of a defendant resisting such a performance. We have already seen that the specific execution of a contract in equity is a matter, not of absolute right in the party, but of sound discretion in the court. Hence, it requires a much less strength of case on the part of a defendant to resist a bill to perform a contract, than...