Milliken-Helm Commission Co. v. C. H. Albers Commission Co.

Citation147 S.W. 1065
PartiesMILLIKEN-HELM COMMISSION CO. v. C. H. ALBERS COMMISSION CO.
Decision Date20 May 1912
CourtUnited States State Supreme Court of Missouri

Woodson, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by the Milliken-Helm Commission Company against the C. H. Albers Commission Company. From a judgment for plaintiff, defendant appeals. Affirmed.

In September and October, 1903, defendant sold to the Thyson Commission Company 95,000 bushels of No. 2 red winter wheat for December delivery. These transactions were expressed in 19 contracts, which were fac-similes of each other, except as to the price and date, each evidencing a sale and purchase, signed, respectively, by the seller and buyer, and all of them containing the following clause: "This contract is subject in all respects to the rules and regulations of the Merchants' Exchange of St. Louis." They matured on the 31st of December, 1903. Payment was demanded by the buyer and refused by the seller on March 15, 1904, seemingly for want of agreement as to the settling price. In July, 1904, the buyer borrowed from the seller $6,000 on its notes, at 90 days, and as collateral security deposited with the lender all of the said contracts. Thereafter, in March, 1908, the borrower assigned all its right and title to each of said contracts to the plaintiff in this action, with full power to collect the amounts due thereon, and, after certain deductions, to pay over the remainder to the assignor. Thereupon, May, 1908, plaintiff brought this action, setting forth in separate counts the obligations of the respective contracts, and praying judgment for the difference in the prices named in them and the price of 92 cents per bushel of the grain, and alleging that this figure had been fixed as the price of said commodity on the 31st of December, 1903 (when delivery was compulsory on the seller), by proper proceedings had under and in accordance with the rules of the St. Louis Merchants' Exchange. The petition averred that the written contracts sued on were in the hands of defendant, and therefore not filed with it. The answer averred (1) that plaintiff was not the real party in interest; (2) that the defendant was the owner and holder of the contracts sued upon, "and that plaintiff has no legal title or right thereto whatsoever"; (3) and that the price fixed as a settling basis for such contracts by the St. Louis Merchants' Exchange was "not real, but fictitious," and caused by "a corner, conspiracy or combination in restraint of trade," in violation of the state and federal Constitutions. Issue was joined by reply.

For plaintiff there was evidence tending to prove the allegations of its petition. The defendant gave evidence showing that the contracts sued on were in its possession, and had been deposited with it as collateral security for the notes of plaintiff's assignor, aggregating about $6,000. These notes and said contracts it also introduced in evidence, showing that they were unpaid, and had become overdue at the time the maker assigned the contracts to plaintiff. Prior to the institution of this suit plaintiff delivered to defendant the following communication: "St. Louis, Mo. May 12, 1908. C. H. Albers Commission Company: We wish to notify you that the Thyson Commission Company has assigned to us all its claims and demands against your company, and particularly its claim against your company for damages growing out of the failure of your company to deliver to the Thyson Commission Company the wheat called for in the contracts referred to in the enclosed copy of the assignment. We herewith make demand on you for the payment of the same; unless same is paid we now notify you that we will institute suit to enforce payment. Yours very truly, Milliken-Helm Commission Company, by Louis Helm, Pres. (Enc) Delivered copy of above letter, together with copy of assignment to C. H. Albers and made demand, this 12th day of May, 1908, on floor of Merchants' Exchange, at 1:10 p. m. Louis Helm." At the conclusion of its testimony, plaintiff stated in open court that it would "consent to a reduction of its claim by $6,000.00 and interest" due on the two notes of its assignor which defendant held if defendant would "by pleading or instruction" ask this to be done. To this offer defendant replied that it would stand on its answer which contained "its complete defense," and that, if plaintiff desired to give a "voluntary credit," it was "its own affair," but defendant stood upon its "pleadings and evidence." The court instructed the jury, in case they returned a verdict for plaintiff, to make their calculation of the amount upon the basis of the price fixed for settlement of such contracts on December 31, 1903, by the action taken under the rules of the Merchants' Exchange, which established the settling price to be 92 cents per bushel. A verdict was rendered in accordance with this instruction, which, after some slight remittitur on some of the counts, aggregated $11,918.52. After the overruling of its motions for new trial and in arrest, defendant duly perfected its appeal.

Barclay, Fauntleroy & Cullen, for appellant. Schnurmacher & Rassieur, for respondent.

BOND, C. (after stating the facts).

1. Appellant requests, in its brief, that we shall reserve any rulings "on the effect and validity" of the rules of the Merchants' Exchange or their application to this case until the appurtenant law can be submitted in future suits, when that ruling will be controlling, and that we will consider in the present case solely the specific points argued and presented for a reversal. We will comply with this request. This necessarily excludes from review the amount of the judgment obtained, since that was based on a price fixed under the Exchange rules, and restricts our consideration to the question of the right of plaintiff to recover at all.

The first defense in the answer is that plaintiff is not "the real party in interest" to prosecute this action. Plaintiff's right to sue is derived through a written transfer (coupled with notice to the defendant) of all the contractual obligations expressed in the several contracts made by defendant with plaintiff's assignor....

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16 cases
  • Mo. Wesleyan College v. Shulte, 36529.
    • United States
    • United States State Supreme Court of Missouri
    • 16 August 1940
    ...should have been parties, and they only could be claimants against this estate. 1 Houts on Pleading, p. 5; Helm v. Albers, 244 Mo. 38, 147 S.W. 1065; Tennent v. Ins. Co., 133 Mo. App. 45, 112 S.W. 754. (3) The conditions of the pledge were not met, and the consideration thereof having faile......
  • Lumbermen's Mutual Casualty Co. v. Norris Grain Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 15 March 1965
    ...Moore, 131 Mo. 650, 32 S.W. 1132; Roth v. Continental Wire Company, 94 Mo.App. 236, 68 S.W. 594; Milliken-Helm Commission Company v. C. H. Albers Commission Company, 244 Mo. 38, 147 S.W. 1065; Bullock v. E. B. Gee Land Company, 347 Mo. 721, 148 S.W.2d 565; Rosecrans v. William S. Lozier, In......
  • Prideaux v. Plymouth Securities Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 2 July 1935
    ......145. An assignee. may sue in his own name. Milliken Co. v. Albers Co., . 244 Mo. 38, 147 S.W. 1065; Guerney v. Moore, 131 Mo. 650, 32 ... secured is that the commission was earned as soon as a sale. contract was obtained by plaintiff or his ......
  • Missouri Wesleyan College v. Shulte
    • United States
    • United States State Supreme Court of Missouri
    • 16 August 1940
    ...two of them should have been parties, and they only could be claimants against this estate. 1 Houts on Pleading, p. 5; Helm v. Albers, 244 Mo. 38, 147 S.W. 1065; Tennent v. Ins. Co., 133 Mo.App. 45, 112 S.W. (3) The conditions of the pledge were not met, and the consideration thereof having......
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