Milliken v. Thyson Commission Company

• Decision Date: 28 March 1907
• Citation: 100 S.W. 604,202 Mo. 637
• Parties: JOHN T. MILLIKEN v. THYSON COMMISSION COMPANY, Appellant
• Court: Missouri Supreme Court

100 S.W. 604

202 Mo. 637

JOHN T. MILLIKEN v. THYSON COMMISSION COMPANY, Appellant

Supreme Court of Missouri, First Division

March 28, 1907

Appeal from St. Louis City Circuit Court. -- Hon. John A. Blevins Judge.

Reversed and remanded.

Chester H. Krum for appellant.

(1) It was manifest error to admit in evidence the portion of the answer of the appellant, which the court permitted to be read. 1. The petition alleged the respondent's cause of action as follows: "July 14, 1903, plaintiff employed defendant through its said representative to buy for plaintiff as his agent one hundred and fifty thousand bushels of No. 2 red winter wheat, to be delivered in the month of December, 1903, under the rules of said Merchants' Exchange of the City of St. Louis. Defendant accepted said commission and executed the same by buying for plaintiff's account said one hundred and fifty thousand bushels of wheat on the floor of the Merchants' Exchange in St. Louis, and reported the said purchases to plaintiff." This averment thus limited to a purchase and only a purchase, was specifically denied. 2. The petition alleged a purchase of grain or purchases aggregating one hundred and fifty thousand bushels. The transaction was a purchase pure and simple, according to the petition. This averment was specifically denied, and that part of the answer which was permitted to be read was merely preliminary to or part of a statement of the real transaction -- namely, a spread between St. Louis and Chicago -- buying a certain quantity of grain in St. Louis for December delivery and selling the same quantity in Chicago, at the same time, for May delivery. By the performance indulged in, respondent was permitted to proceed upon a theory wholly inconsistent with the cause of action, thus ignoring and cutting out features of the real transaction upon which appellant depended by way of defense. (2) The evidence of Corwin H. Spencer as to what is meant by "ringing out" contracts was wholly incompetent. This evidence had no bearing upon the cause of action sued on. Its admission was merely another step in the substitution of a different cause of action. (3) Upon no theory was a peremptory instruction to find for respondent justified under the issues. 1. The petition averred a purchase, or purchases aggregating 150,000 bushels of wheat and only such purchase. It averred that this purchase without any accompanying or qualifying feature was the entire and sole transaction. This was specifically denied. 2. The statement in the amended answer was conditioned solely upon the real transaction. The case was determined, by the instruction, in defiance of the express traverse -- thus being in full keeping with the confused procedure of framing an issue upon a cause of action alleged in the petition and concluding a defendant from defending, because of a new and different cause of action set up in the reply. Appellant was certainly entitled to go to the jury upon the issue whether appellant had afforded respondent the cause of action stated in the petition.

Judson & Green for respondent.

(1) There was no departure in the reply and no objection was made to the filing of the reply. The petition was not based upon purchases alone, as stated in defendant's brief, but upon the purchase of 150,000 bushels of No. 2 red winter wheat by defendant for plaintiff for December, 1903, delivery, and the sale of the same wheat on plaintiff's order, which wheat was actually delivered in December according to contract, and the sale price actually collected by appellant. The answer made a futile attempt to becloud this simple transaction, and the simple relation of principal and agent on which it is based, by attempting to confuse it with certain other trades made by defendant for plaintiff in the Chicago market, which had been closed and settled as to plaintiff, and had no connection whatever with the transaction in suit. In this effort to confuse the transaction, defendant set out the "ringing out" allowed by the exchange to the brokers in adjusting contracts made in their own names as between themselves. Plaintiff therefore in his reply set out the terms of the rule under which this practice was allowed. There was in this no departure, but a simple explanation of the methods of business whereon defendant relied to evade his responsibility as an agent to his principal. But it is really unnecessary to consider the question of departure, because there is not in the record a particle of evidence even tending to show that the defendant did in fact "ring out," or close under the rules of the Merchants' Exchange, the contracts for the purchase of 150,000 bushels of wheat admitted in its amended answer to have been purchased by defendant for plaintiff between July 14th and August 12, 1903. The burden of proof as to "ringing out" these purchases was upon defendant, and no evidence whatsoever on that subject was offered by either plaintiff or defendant. Therefore, there being no evidence to support these allegations of new matter in defendant's answer, the only issue before the jury was whether defendant had made the purchases and sales of wheat for plaintiff, claimed to have been made in the petition and at the prices therein specified, and as these purchases and sales were all admitted in the answer to have been made by defendant, the court properly directed a verdict. (2) It was a proper case for a directed verdict for plaintiff. There was no possible room for anything else. The purchases by defendant for plaintiff's account, wherefor defendant charged plaintiff the regular commission, were admitted. The sales of the same quantity of wheat for same delivery by defendant on plaintiff's order and at plaintiff's cost were also admitted. It was also admitted that defendant actually delivered this wheat and collected the money therefor. No attempt was made to controvert this testimony; Mr. Milliken was not even cross-examined; so practically the whole case stood admitted.

OPINION

WOODSON, J.

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 bushels of number 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 20th, 1903."

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

Bought:

25,000 bushels December wheat @ 77 1/2c

$ 19,375.00

25,000 bushels December wheat @ 82 1/8c

20,531.25

10,000 bushels December wheat @ 82c

8,200.00

25,000 bushels December wheat @ 82 1/4c

20,562.50

25,000 bushels December wheat @ 82 7/8c

20,718.75

10,000 bushels December wheat @ 82 1/8-1/4c

8,218.75

5,000 bushels December wheat @ 82 1/8c

4,106.25

15,000 bushels December wheat @ 82 1/4c

12,337.50

10,000 bushels December wheat @ 82 1/4c

8,225.00

150,000

$ 122,275.00

Sold:

150,000 bushels December wheat @ 88 1/2

$ 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 one hundred and fifty thousand bushels of number two 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 one hundred and fifty thousand 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 one hundred...