Norton v. Bohart
| Decision Date | 10 January 1887 |
| Citation | 24 Mo.App. 240 |
| Court | Missouri Court of Appeals |
| Parties | WILLIAM F. NORTON, SURVIVING PARTNER OF GUTHRIE & NORTON, Respondent, v. JAMES M. BOHART, Appellant. |
APPEAL from Ray Circuit Court, HON. GEORGE W. DUNN, Judge.
Reversed and remanded.
Statement of case by the court.
Guthrie & Norton entered into the following contract with the defendant:
“Contract between James M. Bohart and A. T. Guthrie, and Wm. F. Norton, in regard to transfer of Platte County Bank to Guthrie and Norton.
1. G. & N. are to pay to J. M. B. capital stock and interest on same, $10,250.
2. J. M. B. is to obtain all the stocks in said bank and turn them over to G. & N.
3. G. & N. are to take the business of the bank as it stands--the bank building, furniture, fixtures, stationery, etc., $3,500.
4. Lathrop city scrip to be taken by J. M. B.
5. J. M. B. is to square the cashier's account.
6. J. M. B. is to take up or satisfactorily secure the Fielding Burnes and C. M. Johnson note, and to satisfactorily secure the Davis & Perry overdraft.
7. This contract is to take effect February 14, 1883.”
Guthrie & Norton complied fully with the contract on their part; they paid to Bohart the sum of thirteen thousand, seven hundred and fifty dollars. Bohart fully complied with the contract on his part, unless it be that he failed to do so in the matter hereinafter mentioned.
The Platte County Bank was a corporation duly created and existing under the laws of this state. The bank building was the property of the bank. The bank had paid for the building out of the bank's assets, viz., out of its original capital, its profits, or the money of its depositors. The price paid for the building was two thousand dollars, and it was estimated at that sum in the agreement to take “the business of the bank as it then stood--bank building, furniture, fixtures, and stationery. “The amount paid for the building was charged to the real estate account on the bank's books.
Guthrie & Norton demanded that Bohart balance the real estate account. This Bohart refused to do. This action was then instituted in the Platte circuit court, and on a change of venue the case was taken to the Ray circuit court.
The contract was not signed by any of the parties to it. The petition alleged that the names of the parties were written in the body of the contract by the parties themselves, and that in this manner the contractual relation between the parties was created. But about that it is immaterial, as the evidence of both parties to this suit clearly established that the contract as written was the contract as made.
There was no pretense of fraud or mistake. The plaintiff said, in testimony, He also said that he knew that the real estate account was charged with two thousand dollars. He said, too, that the written contract was the contract between the parties, that it “is my understanding of the trade.”
The petition is not as plain and clear as it might be. The object of the suit is sufficiently clear, it is to recover from the defendant the sum of two thousand dollars. The defendant insists that the ground on which the right to this recovery is based in the petition is, that under the contract it was the duty of the defendant to balance the real estate account, that is, to pay into the bank the sum of two thousand dollars to the credit of that account. The petition is susceptible of such a construction. But it is agreed by the counsel for plaintiff that the right to recover is based upon the payment by Guthrie & Norton, by mistake, of too much, by two thousand dollars, for the bank building.
The court gave for the plaintiff, among others, the following instruction:
“That if the jury find from the evidence that the defendant sold to Guthrie & Norton the Platte County Bank, and that the paid up capital of said bank was the sum of $10,000, and find that in said sale the capital stock was sold at the price of $10,250, to said Guthrie & Norton, and find that in said sale the bank building, furniture, fixtures and stationery was sold at the price of $3,500, and that in said sale the bank building was estimated at $2,000, and the furniture and fixtures at the sum of $1,500, and find that the bank building was paid for out of the assets of said bank; and further find that at the time of said sale the assets of said bank were not in excess of the liabilities of said bank to the depositors, and further find that in closing said purchase, and in making the transfer of said bank defendant failed to make such entries on the books of said bank as were necessary to make the accounts of said bank conform to said sale, and that by reason of such failure the said Guthrie & Norton became liable for and paid the sum of $2,000 in excess of the contract price of said bank, and further find that the said defendant failed to pay the said sum of $2,000 to balance the real estate account of said bank, then the jury will find for the plaintiff the sum of $2,000, with six per cent. interest thereon from the time demand of payment thereof was made by said Guthrie & Norton upon said defendant.”
The jury found for the plaintiff, and judgment was so entered. The defendant has appealed to this court.
THOS. J. PORTER and KARNES & ESS, for the appellant.
I. The petition states no cause of action. There is no mistake in the contract as shown in the petition; none is alleged. There is no allegation of fraud or concealment. It is not pretended, in the petition, that plaintiff paid to defendant more than the amount agreed to be paid to him.
II. A corporation is an artificial being. The real beneficiaries are the stockholders; the property of a corporation belongs to the stockholders. The real estate of the Platte County Bank, its furniture, its business, its fixtures, and stationery, belonged to the stockholders. By the contract set out in the petition, and by the petition, plaintiffs were to become sole stockholders, and in addition they were to pay for the business as it stands-- its real estate, its furniture, fixtures, and stationery--thirty-five hundred dollars.
III. The written contract is plain without any ambiguity or mistake. The evidence don't add, and cannot add, an obligation outside of the terms of the contract. Bunce v. Beck, 43 Mo. 266; Burress v. Blair, 61 Mo. 141; Jones v. Shaw, 67 Mo. 669.
IV. There is no pretense in the petition, or evidence, that part only of the contract was reduced to writing; or that there was concealment of any kind concerning the accounts or business of the bank, or its assets, or liabilities.
V. There was error in the admission of testimony for the plaintiff, which was objected to as incompetent, irrelevant, and immaterial, but the objections were overruled and defendant excepted. It was asking the witness to infer from assumed facts. Plaintiffs could stipulate to pay for the real estate to defendant two thousand dollars, and did so stipulate and pay.
VI. The instruction given for plaintiff was erroneous. It is not in pursuance of the pleadings. It has no evidence to support it. It is not the law, even if there was evidence to support it, and, even if the pleadings would authorize it, it is not intelligible and confuses the jury. Crole v. Johnson, 17 Mo. 332; Belt v. Wade, 31 Mo. 130; Young v. Ridenbaugh, 67 Mo. 574.
VII. The court erred in refusing instruction asked for defendant, to the effect that the contract represents the obligations of the parties to the suit, and if defendant performed his part of it according to its terms, the jury must find for defendant. Defendant was entitled to this instruction, and the court erred in refusing to give it as asked, and erred in modifying it. So as to the other instructions asked and refused to defendant.
VIII. When there is no evidence on an issue it is error to give an instruction on the matter. Doehling v. Loos, 45 Mo. 150; Harper v. Railroad, 44 Mo. 488; Nugent v. Curran, 77 Mo. 328; Railroad v. Murdock, 62 Mo. 73.
R. P. C. WILSON, NORTON B. ANDERSON, STEPHEN C. WOODSON, and JAS. F. MISTER, for the respondent.
I. The petition states clearly a substantial cause of action. The answer admits it, and by its terms shows a double payment for the bank building. The petition is certainly good after verdict, and judgment is a bar to another action. Lemon v. Chanslor, 68 Mo. 340; Corpenny v. Sedalia, 57 Mo. 88; Pomeroy v. Benton, 57 Mo. 88; Rev. Stat., sect. 3582; Moberly Association v. True, 79 Mo. 193.
II. There is no variance between the pleadings and the evidence, but rather an essential accordance. But if there is, defendant is in no condition to complain of it. Rev. Stat., sect. 3565; Blair v. Corby, 29 Mo. 481; Myer v. Chambers, 68 Mo. 626; Clements v. Maloney, 55 Mo. 352; Wells v. Sharp, 57 Mo. 56; Ely v. Porter, 58 Mo. 158.
III. The law was properly declared to the jury, and the verdict was for the right party, and a new trial would lead to the same result. There is no ground for reversal in the instructions. Moore v. Sanborin, 42 Mo. 490; Karle v. Railroad, 55 Mo. 476; Edwards v. Cary, 60 Mo. 572; Henschen v. O'Bannon, 56 Mo. 289; Otto v. Bent, 48 Mo. 23; Nelson v. Foster, 66 Mo. 381; Galbreath v. Moberly, 80 Mo. 4 4; Morris v. Railroad, 79 Mo. 368; Hoskinson v. Atkins, 77 Mo. 537; Garesché v. Directors, etc., 76 Mo. 332; Hodges v. Black. 76 Mo. 537; Lewis v. Curry, 74 Mo. 49; Cartwright v. Culver, 74 Mo. 179.
IV. Where the writing does not exhibit on its face, or purport to be, a complete expression of the entire contract between the parties, parol evidence is admissible to explain and supply omissions. Ellis v. Bray, 79 Mo. 238; Lash v. Parlin, 78 Mo. 391; Life Association v. Cravins, 60 Mo. 390; Beck v. Beck, 43 Mo. 266-280; 1 Greenl. Evid. (4 Ed.) sect. 284 a; Brewster v. Countryman, 12 Wend. (N. Y.) 446; Richardson v. Hooper, 13 Pick. (Mass.) 446.
V....
To continue reading
Request your trial