Morrison v. Caspersen, 47981

• Decision Date: 14 November 1960
• Docket Number: No. 47981,No. 1,47981,1
• Citation: 339 S.W.2d 790
• Parties: Charles H. MORRISON, Respondent, v. Victor H. CASPERSEN, Individually and as Officer of Fre-Zert, Inc., and Vix Ice Cream Company, et al., Appellants
• Court: Missouri Supreme Court

Page 790

339 S.W.2d 790

Charles H. MORRISON, Respondent, v. Victor H. CASPERSEN, Individually and as Officer of Fre-Zert, Inc., and Vix Ice Cream Company, et al Appellants.

No. 47981.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1960.

Fred Armstrong, F. G. Armstrong, St. Louis, for defendants-appellants.

Shifrin, Treiman, Agatstein & Schermer, J. Leonard Schermer, St. Louis, for plaintiff-respondent.

HYDE, Judge.

This is an appeal by defendants from a final judgment requiring them to deposit certificates in plaintiff's name for certain shares of stock in the defendant corporations, and two notes of plaintiff marked paid; and ordering the payment to defendants of certain sums deposited in the registry of the court by plaintiff.

Defendants contend this judgment violates the opinion and mandate of this court in Morrison v. Caspersen, 323 S.W.2d 697, 704, the original appeal of this case to this court, in which we reversed the judgment and remanded the cause with the following directions:

'It follows that upon remand of this case the trial chancellor should enter his order making provision for the following:

'Respondent shall file in the trial court within 30 days following the date the mandate herein is filed in that court, his election stating which of the alternative accountings (heretofore described) he desires. In the event respondent elects to pay for the stock in question the amount due on each of the notes, less the salary credit on the note to Victor Caspersen, then as a part of and as a condition of his right to make such an election he shall deposit therewith a sum sufficient to pay the total net amounts due on each note; within five days thereafter appellants shall deposit in court a duly issued certificate for 100 shares of the capital stock of Vix Ice Cream Company, a corporation, and a duly issued certificate for 17 shares of the capital stock of Fre-Zert, Inc., a corporation, each of said certificates to be in the name of respondent and each certificate to be free of any restrictive endorsement or pledge or other restriction, together with the two notes hereinabove described marked paid; upon the deposit of the sum above mentioned and of the certificates and notes above described, the money shall be paid to the respective appellants in the proper amounts, respectively, and the described certificates and notes delivered to respondent.

'In the event respondent elects to have an accounting fixing the value of his entire interest as of January 31, 1954, he shall file with such election an assignment of certificate 4 for 100 shares of the capital stock of Vix Ice Cream Company, a corporation, to Victor H. Caspersen, and an assignment of certificate 13 for 17 shares of the capital stock of Fre-Zert, Inc., a corporation, to Victor H. Caspersen, John B. Caspersen, and Ervin O. Lenzen. If, when the accounting so elected and heretofore described has been completed the amount due respondent is in excess of the total owed by respondent on the two notes, such excess amount shall forthwith be paid into court by appellants and paid over to respondent.

'In the event respondent fails to file an election as provided, then, and in that event, the accounting as of January 31, 1954, of respondent's entire interest (as hereinbefore described) shall nevertheless proceed and the resulting decree will provide that certificate 4 for 100 shares of capital stock of Vix Ice Cream Company, a corporation, is thereby transferred and assigned to Victor H. Caspersen and that certificate 13 for 17 shares of the capital stock of Fre-Zert, Inc., a corporation, is thereby transferred and assigned to Victor H. Caspersen, John B. Caspersen, and Ervin O. Lenzen.'

Our records show that thereafter motions for rehearing filed by all parties were overruled on April 13, 1959; and that on April 27, 1959, plaintiff filed a motion to stay our mandate until such time as he is given an opportunity to inspect the books of the defendant corporations 'or in the alternative amend the decree so that the thirty day period mentioned...