Milliken v. Thyson Commission Co.

• Decision Date: 22 February 1907
• Citation: 202 Mo. 637,100 S.W. 604
• Parties: MILLIKEN v. THYSON COMMISSION CO.
• Court: Missouri Supreme Court

100 S.W. 604

202 Mo. 637

MILLIKEN v. THYSON COMMISSION CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. PLEADING—ISSUES AND PROOF—EVIDENCE ADMISSIBLE.

In an action to recover profits realized by defendant in the purchase and sale of wheat for plaintiff, the petition alleged the purchase by defendant under plaintiff's orders of 150,000 bushels of wheat on the floor of the Merchants' Exchange of St. Louis, and the subsequent sale of that quantity, but did not state the dates of purchase or sale. The answer set up various purchases and sales by defendant for plaintiff which were different from those specified in the petition, but denied the allegations of the petition. Held, that the portion of the answer setting up the purchases and sales could not be introduced in evidence by plaintiff, as he could not recover on a cause of action different from the one pleaded, and isolated portions of a pleading are not admissible where the apparent admissions of such portion are contradicted by the pleadings as a whole.

2. TRIAL—TAKING CASE FROM JURY—DEMURRER TO EVIDENCE.

Where no evidence is introduced tending to prove the cause of action set up in the petition, a demurrer to the evidence should be sustained.

3. SAME—DIRECTION OF VERDICT—GROUNDS— VERDICT FOR PLAINTIFF.

Where the allegations of the petition are denied, and evidence is submitted to sustain the issues joined, defendant is entitled to have the jury pass on the evidence, though defendant offers no evidence on his own part.

Appeal from St. Louis Circuit Court; John A. Blevins, Judge.

Action by John T. Milliken against the Thyson Commission Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an appeal from the judgment of the circuit court of the city of St. Louis in favor of the respondent for the sum of $10,540.78, growing out of certain transactions on the floor of the Merchants' Exchange of the city of St. Louis. In order to fully understand the questions involved in the case it is necessary to set out the pleadings. The petition is as follows: "Plaintiff states that defendant, the Thyson Commission Company, is a general business corporation, organized under the laws of Missouri, and at the times of the transactions hereinafter stated was engaged through its representative, one John Thyson, in the business of selling grain on the floor of the Merchants' Exchange in the city of St. Louis. Plaintiff for his action states that, heretofore, to wit, on July 14, 1903, plaintiff employed defendant through its said representative to buy for plaintiff as his agent one hundred and fifty thousand (150,000) bushels of No. 2 red winter wheat, to be delivered in the month of December, 1903, under the rules of said Merchants' Exchange in the city of St. Louis. Defendant accepted said commission and executed the same by buying for plaintiff's account said 150,000 bushels of wheat on the floor of the Merchants' Exchange in St. Louis, and reported the said purchases to plaintiff. Thereafter, on November 20, 1903, plaintiff ordered defendant to sell the said wheat so purchased for his account, and defendant executed said order of sale, and sold said wheat for defendant, realizing therefrom a net profit over and above said purchase price of $10,381.25, which said profit defendant realized as plaintiff's agent, and for plaintiff's account, as will appear from the statement of said account herewith filed and made a part hereof as Exhibit A. Plaintiff states that, although demand has been made upon defendant for said amount, defendant refuses to pay same, or any part thereof. Plaintiff says that the said transaction was fiduciary, in that the defendant acted as plaintiff's agent, made the said purchase and sale for plaintiff's account as such agent, and has appropriated and unlawfully converted the said sum thus belonging to plaintiff to its own use. Wherefore plaintiff asks judgment against defendant for said sum of $10,381.25, with interest from November 20, 1903."

Exhibit A, referred to in the petition, is as follows:

                                         Bought
                 25,000  bushels  December  wheat  @  77½c........ $ 19,375 00
                 25,000     "        "        "    @  82 1/8c........   20,531 25
                 10,000     "        "        "    @  82 c...........    8,200 00
                 25,000     "        "        "    @  82¼c........   20,562 50
                 25,000     "        "        "    @  82 7/8c........   20,718 75
                 10,000     "        "        "    @  82 1/8-¼c...    8,218 75
                  5,000     "        "        "    @  82 1/8c........    4,106 25
                 15,000     "        "        "    @  82¼c........   12,337 50
                 10,000     "        "        "    @  82¼c........    8,225 00
                 ______                                                ______________
                150,000                                               $122,275 00
                                        Sold
                150,000 bushels December wheat @ 88½c........ $132,750 00
                Cost of wheat purchased as above....................  122,275 00
                                                                    _____________
                   Profit .......................................... $ 10,475 00
                   Less commission 1-16.............................       93 75
                                                                     _____________
                      Net profit ................................... $  10,381 25
                

To the petition the appellant filed the following answer:

"By way of amended answer to the petition of plaintiff, the defendant denies that, on July 14, 1903, or at any time, plaintiff employed defendant, through its alleged representative or otherwise, to buy for plaintiff 150,000 bushels of No. 2 red winter wheat, to be delivered in the month of December, 1903, under the rules of the Merchants' Exchange of St. Louis, or that the defendant accepted such commission or bought said 150,000 bushels of wheat. The defendant denies that in the month of November, 1903, or at any time, at plaintiff's instance, the defendant sold for plaintiff 150,000 bushels of wheat theretofore purchased for plaintiff, or any quantity of wheat theretofore purchased by defendant for plaintiff, or that from such sale a net profit was realized of $10,381.25, or any other sum. The defendant denies that it has converted to its own use any sum of money or proceeds of sale, which belonged to plaintiff, or that it is indebted in any manner to the plaintiff. Further answering, the defendant states: That, beginning with July 14, 1903, and ending August 12, 1903, at the instance and by the direction of the plaintiff, the defendant bought wheat for delivery in the month of December, 1903, in St. Louis, under the rules of the St. Louis Merchants' Exchange, from the persons, in the quantities, and for the following prices per bushel, to wit:

                 July   14. B. H. Lang & Co., 25 M. at........... 77½c
                 Aug.    3. T. W. Carter & Co., 5 M. at.......... 82 c
                 Aug.    3. C. H. Albers Co., 25 M. at........... 88 1/8c
                 Aug.    3. J. H. Teasdale Co., 20 M. at......... 82¼c.
                 Aug.    3. W. A. Gardner & Co., 5 M. at......... 82¼c.
                 Aug.    3. A. Miller, 5 M. at................... 82 c.
                 Aug.    5. Hubbard & Moffett Co., 10 M. at...... 82 7/8c.
                 Aug.    5. E. C. Chamberlain & Co., 5 M. at..... 82 7/8c.
                 Aug.    5. T. W. Carter & Co., 5 M. at.......... 82 7/8c.
                 Aug.    5. Woodlock & Gessler, 5 M. at.......... 82 7/8c.
                 Aug.   12. C. H. Albers Com. Co., 10 M. at...... 82¼c.
                 Aug.   12. Langenberg Bros. & Co., 5 M. at...... 82 1/8c.
                 Aug.   12. Langenberg Bros. & Co., 5 M. at...... 82¼c.
                 Aug.   12. Ballard Messmore & Co., 5 M. at...... 82 1/8c.
                 Aug.   12. C. H. Albers Co., 5 M. at............ 82¼c.
                 Aug.   12. C. H. Albers Co., 5 M. at............ 82¼c.
                 Aug.   12. C. H. Albers Co., 5 M. at............ 82¼c.
                

"That at the times of the said respective purchases the defendant, by direction of the plaintiff sold for delivery in the month of May, 1904, in the city of Chicago, Ill., under the rules of the Chicago Board of Trade, an equal quantity of the same grade of wheat, thereby effecting what are known to dealers in futures as spreads between St. Louis and Chicago. That the Chicago transactions were subsequently closed out by direction of the plaintiff, leaving the St. Louis trades still open. That at various times, between July 29 and September 1, 1903, the said trades, hereinbefore specified, were rung out, or closed under the rules of the St. Louis Merchants' Exchange, in some instances with a loss, and in other instances with a profit; the net result being a profit of $1,350, which the defendant has always been ready and willing to pay to the plaintiff. Further answering the defendant states that, on November 20, 1903, it sold for the plaintiff 150,000 bushels of wheat for delivery under the rules of the St. Louis Merchants' Exchange in the month of December, 1903; that theretofore defendant had bought at various times between July 14th and August 15th of said year for plaintiff's account, and at his instance and request 150,000 bushels of wheat for the same month's delivery; that the wheat sold on account of plaintiff was not wheat belonging to plaintiff, but which was covered by contracts with others for delivery in said month of December; that in the month of December defendant delivered 150,000 bushels of wheat for the account of plaintiff, at the price made in November, and received the proceeds of sale therefor; that persons from whom wheat had been bought as aforesaid on account of plaintiff made default on their contracts in the said month of December, and are still in such default, and owe to defendant the amount due under their contracts at the prices thereunder made; that the matters thus standing between plaintiff and defendant are still open and unadjusted, although defendant believes and states the fact to be, that upon the performance of their contracts by said sellers, there will be a net result or profit to plaintiff of some $1,350."

The respondent thereupon filed the following reply:

"Comes now plaintiff, and,...