Mundy v. Mo. Power & Light Co.

• Decision Date: 01 February 1937
• Docket Number: No. 18609.,18609.
• Citation: 101 S.W.2d 740
• Parties: J.C. MUNDY, EXECUTOR, ETC., RESPONDENT, v. MISSOURI POWER AND LIGHT COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

101 S.W.2d 740

J.C. MUNDY, EXECUTOR, ETC., RESPONDENT, v. MISSOURI POWER AND LIGHT COMPANY, APPELLANT.

No. 18609.

Kansas City Court of Appeals. Missouri.

February 1, 1937.

Appeal from the Circuit Court of Boone County. — Hon. W.M. Dinwiddie, Judge.

REVERSED AND REMANDED.

Jerry M. Jeffries and Don C. Carter for respondent.

E.B. Hamilton and Hunter & Chamier for appellant.

SHAIN, P.J.

Prior to the final determination of this cause by this court, the death of plaintiff was suggested and by stipulation of parties the cause was revived in the name of J.C. Mundy, executor of the estate of O.G. Hamilton, deceased, and cause submitted on the records and briefs and oral arguments made at this term of court.

In the case at bar the plaintiff in his petition alleges that he purchased from the defendant and paid to defendant the sum of $873 for nine shares of stock in the defendant's corporation, but that defendant did cheat, wrong and defraud plaintiff by causing to be delivered to him useless stock in another company.

If the plaintiff had merely alleged the purchase of, the payment for, and failure of delivery to, then a plain cause of action for money had and received would be presented. If the allegations above set forth be alone considered, then the element of fraud is awkwardly injected into the case, in that proper allegation of intent, representations, falsity and reliance are not present.

The plaintiff, not content to plead a plain and concise cause of action for money had and received, proceeds by going into detail by the pleading of facts of evidence of and concerning the transaction whereby many burdens are assumed, which, when defendant's answer is considered, are not necessarily within the issue.

Under the plaintiff's pleading he not only alleges that defendant caused the valueless stock to be delivered to him, but further alleges that the defendant to cover up the cheat, wrong and fraud procured and caused dividends on said valuless stock to be paid to plaintiff and that plaintiff, not having knowledge that the stock was not stock in defendant's company, accepted and retained the said stock and received and retained said dividends for a period approximating one and one-half years at which time, it is alleged, he became informed that the alleged valueless stock allegedly delivered to and ignorantly accepted by him was not the stock he had purchased.

To further confuse the issue, the plaintiff pleads as follows:

"Plaintiff states that as such corporation defendant, long prior to the times herein mentioned established and has ever since maintained and operated what it terms as `investment department' or `resale department' and at its various offices and places of business in said Cities and towns, has had its agents, servants and employees to take and receive subscriptions and offers for its stocks and bonds from persons who desired to purchase the same, and to make contracts for investments in said stock and to purchase the same."

In closing the plaintiff pleads as follows:

"He further avers that upon learning said deceit and fraud and discovering that he had not be delivered a certificate of stock in the company that owned and operated said light and power plants in Missouri he offered to deliver to defendant the certificate so delivered to him and offered to return the same together with all interest or dividends received by him and demanded of defendants the sum of $873.00 and interest thereon at six per cent from April, 1931, and that he had continued to so offer and demand and does now in court so offer which offer and demand was refused. And plaintiff says that he has been damaged in the sum of $873.00 with interest from July, 1932 at 6%.

"Wherefore plaintiff asks judgment against defendant for the sum of $873.00 with interest from July, 1932 and for costs."

The issues were joined by defendant making a general denial and then following up by a specific denial as to each and every allegation of fact upon which defendant had alleged as a cause of action, and specifically denied that defendant ever had an investment or resales department.

The defendant in its answer admitted corporate existence and further made an admission in the following language:

"Defendant admits that there was delivered to the plaintiff by Power & Light Securities Company, a corporation, and not by this defendant, a certificate for 9 shares of preferred stock of the North American Light & Power Company, which was the stock purchased and paid for by the plaintiff, and avers that after plaintiff held the said stock for a long time, to-wit: approximately one and one-half years, and after collecting, receiving and retaining the dividends paid to him by North American Light & Power Company upon said stock, that he demanded that the defendant should deliver to him 9 shares of its preferred stock in exchange for the 9 shares of North American Light & Power Company stock."

It will be noted that this paragraph neither affirms or denies as to any real issue.

There was an allegation by plaintiff as to agency of an employee of defendant and a specific denial by defendant of the agency for selling stock in defendant's or any other company. Plaintiff's reply is a general denial.

There was a trial by jury. There were but two witnesses who testified. The plaintiff took the stand in his own behalf and his testimony presents evidence in...