Moore v. King

• Decision Date: 01 June 1915
• Docket Number: No. 17284.,17284.
• Citation: 178 S.W. 124
• Parties: MOORE v. KING.
• Court: Missouri Supreme Court

178 S.W. 124

MOORE v. KING.

No. 17284.

Supreme Court of Missouri.

June 1, 1915.

Rehearing Denied June 29, 1915.

In Banc. Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by R. W. Moore against John C. King. From a judgment for plaintiff, defendant appeals. Affirmed.

The amended petition filed in this cause on March 6, 1908, alleges that on or about the 15th day of April, 1906, and for some time prior thereto, and continually thereafter until September 26, 1906, said defendant was the legal owner of all the stock and interest in a corporation known as the King Electric Company; that all of said stock and interest was held in the name of said defendant at the times above stated, except a few shares of said stock, which were held in the names of others, but in trust for the use and benefit of said defendant; that said King Electric Company was a corporation duly organized under the laws of Missouri, with its principal office and place of business in the county of St. Louis, and state of Missouri; that it owned and operated an electric light and power plant in said county; that about the 15th of April, 1906, defendant entered into a verbal agreement with plaintiff, whereby defendant agreed to and did employ, constitute, and appoint said plaintiff as his agent for the purpose of working with and assisting defendant in securing a purchaser or purchasers, and in bringing about a sale of said defendant's interests and stock in the above-named corporation for the most desirable price and gum; that, in consideration of such services to be rendered to said defendant by said plaintiff, defendant agreed to pay plaintiff $12,500 full-paid and nonassessable stock in a corporation to be formed and organized for the purpose of engaging in the general electrical supply business in the city of St. Louis, Mo.; that said corporation was to be organized under the laws of Missouri, with a capital stock of $25,000 fully paid; that plaintiff consented to and accepted the above agreement.

The petition alleges that, pursuant to above understanding and agreement, plaintiff immediately began to devise plans and means for the purpose of bringing about a sale of said defendant's interests and stock in said King Electric Company; that plaintiff submitted his plans to defendant, and the latter approved same; that plaintiff then, acting in cooperation and conjunction with defendant, proceeded in search of a purchaser or purchasers ; that defendant was continually advised by plaintiff of his actions and propositions made to prospective purchasers, and plaintiff's actions were approved by defendant ; that plaintiff held numerous conferences with defendant and at all times kept defendant fully advised of his (plaintiff's) actions and plans; that on the 26th day of September, 1906, through the labor and efforts of said plaintiff, purchasers were procured for the purchase of said defendant's interests and stocks in said King Electric Company, and a sale of said defendant's interests and stock in said corporation was consummated between said defendant and said purchasers, for a sum of approximately $100,000, which sum was agreeable to, and which was accepted by, said defendant, and it was agreed by defendant that it was the most desirable price to be obtained; that plaintiff was responsible and instrumental in bringing about this said sale, and said plaintiff, on numerous occasions, held conferences with said purchasers for the purpose of inducing them to purchase, and for the purpose of bringing said sale about, all with the knowledge and consent of said defendant; that after the last mentioned date, and after above sale had been consummated, plaintiff made frequent demands upon defendant to comply with said oral agreement, to wit, to organize the said corporation, to engage in the general electrical supply business, as provided in said oral agreement, and to pay over to plaintiff the $12,500 full-paid and nonassessable stock in said corporation, but said defendant at all times refused, and still refuses, to comply with said agreement, to the damage of plaintiff in the sum of $12,500, and interest from the 26th day of September, 1906.

The answer is a general denial.

Kinealy & Kinealy, of St. Louis, for appellant. Jos. T. Davis and Edgar R. Rombauer, both of St. Louis, for respondent.

RAILEY, C. (after stating the facts as above).

This being an action at law to recover damages, the findings of the jury in respect to all issues of fact, based upon substantial evidence, and covered by proper instructions, are not the subject of review by this court. It becomes our duty, however, to determine whether the facts disclosed by the record are sufficient in law to establish the contract sued on, after conceding to plaintiff every reasonable inference, which might be fairly drawn, in his favor, from the facts proven.

1. Was the evidence sufficient to make a prima fade case in respect to the validity of contract sued on? The evidence, briefly stated, shows that defendant was the owner of the capital stock of King Electric Company, a corporation organized under the laws of Missouri, and furnishing electric light to the public in St. Louis county, Mo. Plaintiff, who had been formerly dealing with defendant, met the latter, and was informed that defendant would like to sell the above plant (King Electric, Company). He asked plaintiff to assist him in selling it, and the latter agreed to do so. Plaintiff's evidence on this subject is as follows:

"We talked the matter over a while, and he says, `Now, I think you can help me in the sale of this plant.' He says, `I would like to sell it' He says, `I would like to dispose of it.' And we talked the matter over a while regarding it, and we finally decided that I would undertake to help him in the disposal of that plant. In the course of the conversation he turned to me, and he says, '`Now, what are you going to charge me for helping in the sale of this plant?' `Well,' I says, `Mr. King, myself and a business associate of mine want to go into the electrical supply business, or the jobbing of electrical supplies, and you would not mind putting in $25,000 into a corporation and giving me half of the stock?' He says, `No; I would be very glad to do that.' He says, `I want a smaller business where I won't be to so much worry and trouble.' Q. Was that all that was said relative to what you were to get in the event that you assisted him in disposing of this plant? A. Well, we talked over—he mentioned the fact that we would only have two in our company, and that it would take three to start the company: that is, to organize the company. I told, him that I had one man that I wanted to take with me, in fact, two of them; and that we could very easily form that company and incorporate."

Defendant read in evidence plaintiff's deposition in the cause relating to the alleged contract, as follows:

"Q. Just give me that conversation? A. I will give it as near as I can. Mr. King, when he asked me to sell the plant, we talked the matter over for a while; and he said, `What are you going to charge me for selling this plant?' `Well,' I said, `Mr. King, myself and a business Partner of mine want to go into the electrical business. You would not mind putting $25,000 into the electrical business if you dispose of your plant?' He said: `No, I would be glad to do it. I want a smaller business, where I will have less money invested and less worry.' He was speaking generally of the worry of the plant. I said: `Well, if I sell that plant, will you put $25,000 into the electrical business, and give me half of the stock? I think that is reasonable compensation.' He said, `Yes, I will do it.' He said, `You go out and sell the plant.' Q. Who was there when that was said ? A. Nobody but Mr. King and I. We were there alone. He desired that nobody know anything about the deal. Q. Was anything said as to your paying for that stock? A. No, sir; I told him that my proposition with him was that he was to put $25,000 into the business, and give me half the stock for my work in the sale of the plant. Q. Well, now, have you given me the conversation just as near as you can recall it now? A. About as near as I can recall it. Q. And the business, you say, that was discussed, was the electrical business? A. The electrical supply business."

Defendant testified upon this question as follows:

"Q. When was the first thing that you remember of having been said with regard to compensation? A. I asked him one day, after this was going on quite a while—I asked him what he was going to charge me for selling the plant. `Well,' he says, `I will tell you. I would like to go into an electrical business, and if you will put in $25,000 and give me half, and let me pay it back in dividends, that is all I want for it.' I told him. `Well, I will think about that.' Q. Was the matter ever discussed after that? A. No; never was a word mentioned. Q. And you told him what, in answer to that question? A. I told him I would think about it. Q. And he never brought it up again, you say? A. No, sir. I never intended to go into it."

He further testified upon the same subject as follows:

"Q. Did you ever discuss the question of compensation with Mr. Moore at any time prior to the sale? A. No; only that one time. Q. Which time? A. The time I asked him what he was going to charge for selling the plant. Q. Well, what was said then? A. He told me that he would like to go into the electrical business, and if I would put $25,000 in it, and give him half, he would pay me back in commission. Q. In dividends? A. Or in dividends, I would say. Q. That was the only conversation you ever had with him on that subject? A. Yes, sir; that was the only conversation. That is true. Q. Now, did you ever discuss the &tails of this electrical supply business any further? A. No, sir; never did. I think, though, that Mr. Moore told me about the Century wanting to sell out. ...