Nulsen v. National Pigments & Chemical Co.

• Citation: 145 S.W.2d 410,346 Mo. 1246
• Decision Date: 11 December 1940
• Docket Number: 36281
• Parties: Albert G. Nulsen v. National Pigments & Chemical Company, Appellants
• Court: United States State Supreme Court of Missouri

145 S.W.2d 410

346 Mo. 1246

Albert G. Nulsen v. National Pigments & Chemical Company, Appellants

No. 36281

Supreme Court of Missouri

December 11, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

Boyle & Priest, George T. Priest and Robt. E. Moloney for defendant-appellant.

(1) Where the evidence is wholly documentary, as in this case, it is a question for this court as to what the judgment shall be. State ex rel. v. Western Union, 304 Mo. 220; Bacon v. Theiss, 208 S.W. 255. (2) Under the alleged "contract of adoption" the resolution of September 29, 1921, appellant did not promise to pay respondent any money. All that respondent agreed to do with Mr. Nulsen, if it agreed to do anything, was to "adopt" the contract Mr. Nulsen made with Mr. DeLore, and a refusal on respondent's part to comply with the "adopted contract," that is, the contract between Mr. De Lore and Mr. Nulsen of August 30, 1921, was a breach of its contract of "adoption" with respondent, Mr. Nulsen, and his cause of action, if any, was for damages for the breach of the contract is such sums as Mr. Nulsen had to pay Mr. DeLore under their contract. The five-year Statute of Limitations and not the ten-year statute applies. Herweck v Rhodes, 327 Mo. 29; State ex rel. v. Western Union, 304 Mo. 220; Secs. 861, 862, R. S. 1929. (3) Appellant breached its alleged "contract of adoption" with respondent on January 10, 1925, when it refused to carry out his obligation thereunder, and on that day Mr. Nulsen's cause of action against appellant on the alleged "contract of adoption" accrued, and since the five-year Statute of Limitations applies, and since Mr Nulsen didn't file his suit against the claimant until August 18, 1931, more than five years after his cause of action accrued, it is now barred. Hamm v. Hill, 29 Mo. 275; Loewenthal v. McElroy, 181 Mo. 399; Bank v. Leyser, 116 Mo. 61.

Emmet T. Carter, James E. Garstang, Davis Biggs, Jr., and Harold R. Small for respondent;

Carter & Small of counsel.

(1) Nulsen's cause of action was not barred by the five-year Statute of Limitations. R. S. 1929, sec. 860; Shearer v. Guardian Trust Co., 136 Mo.App. 229, 116 S.W. 456; Miller v. Woodward, 8 Mo. 176; Hearne v. Keath, 63 Mo. 89; Ward v. First Natl. Bank of Caruthersville, 70 F. 256; Mellette Farmers' Elevator Co. v. Poehler Co., 18 F.2d 430; Howell v. Commissioner, 69 F.2d 447; Burrus v. Cook, 215 Mo. 496; Lively, etc., v. Tabor, 341 Mo. 352, 107 S.W.2d 62; Krebs v. Bezler, 338 Mo. 365; Restatement of the Law of Restitution by the American Law Institute, sec. 76, p. 331; Mechem on Agency, sec. 1603; Schur v. Trust Co., 330 Mo. 149, 49 S.W.2d 164; Marston Co. v. Kochritz, 293 P. 120; Johnston v. Grimm, 209 Iowa 1050, 229 N.W. 716; Ricker v. Ricker, 248 Mass. 549, 143 N.E. 539; Scripture v. Buckley, 137 Misc. 155, 241 N.Y.S. 635; Grygiel v. Marcille, 152 A. 44. (2) The defense of ultra vires was not an issue below, and was not mentioned in the declarations of law sought by defendant Schlitz Brewing Co. v. Poultry, etc., 287 Mo. 400, 299 S.W. 813; Mount Vernon v. Mount Vernon Trust Co. 270 N.Y. 400, 1 N.E.2d 825; 9 Fletcher, Cyc. Corps., sec. 4547, p. 420; Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 23 S.W.2d 64; Chouteau v. Mo. Lincoln Trust Co., 310 Mo. 683, 276 S.W. 36; Stringfellow v. Rosebrough Monument Co., 196 S.W. 1050; Title Guar. Trust Co. v. Sessinghaus, 28 S.W.2d 1001, 325 Mo. 420; Robart-Lee Tie Co. v. Grodsky, 46 S.W.2d 859; 7 Fletcher, Cyc. Corp., sec. 3486; 6 Fletcher, Cyc. Corp., sec. 2861; St. Louis Rawhide Co. v. Hill, 72 Mo.App. 148. (3) The defense of fraud has no support in the evidence and was not an issue below. South Side Buick Auto Co. v. Bejach, 44 S.W.2d 870.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

A rehearing was granted in this cause, additional briefs were filed, and the cause has been reargued and reassigned. We adopt the statement in the former opinion as follows:

"This is an action to recover amount paid out on a judgment against plaintiff and for an attorney's fee in the case resulting in the judgment. A jury was waived; judgment, including interest, went for plaintiff for $ 21,182.48, and defendant appealed.

"The facts, in part stipulated, were these: In effect, plaintiff owned the Nulsen Corporation, Manufacturers, and C. P. DeLore owned the J. C. Finck Mineral Milling Company, and the latter company owned the DeLore-Baryta Company. December 20, 1920 the stockholders of the Nulsen Corporation and the Finck Company entered into a contract to consolidate these two corporations. January 11, 1921, the name of the Nulsen Corporation, Manufacturers, was changed to National Pigments & Chemical Company, defendant here. All did not run smoothly with plaintiff and DeLore, so on July 30, 1921, plaintiff and DeLore entered into an agreement by which plaintiff bought all the interest that DeLore and his associates had in the defendant company. At the time of the deal between plaintiff and DeLore, no stock had been issued by the new company, defendant here, but it was considered that plaintiff bought all the stock in the new company that would have been issued to DeLore and his associates. In effect, plaintiff bought all the properties of the Finck Company and the DeLore-Baryta Company. Plaintiff's case is based on the theory that in dealing with DeLore, he was acting for the defendant, and that he made the purchase for and on behalf of defendant, and that defendant adopted his deal with DeLore.

"The contract between plaintiff and DeLore was signed by them only. The consideration was $ 400,000, payable as follows: $ 50,000 upon execution of the contract, $ 100,000 in 60 days, and $ 25,000 in 90 days. The balance was taken care of by plaintiff's six per cent notes, one for $ 75,000, due January 10, 1922, and three for $ 50,000 each, and due, respectively, January 10, 1923, 1924, and 1925.

"Price Waterhouse & Company, accountants, had made an audit of the Finck Company and the DeLore-Baryta Company, and the contract between plaintiff and DeLore, among other things, provided:

"'The statements of Price, Waterhouse & Company, upon the basis of which this contract has been entered into, show a possible tax liability, on account of back income and excess profits taxes of $ 35,000.00 on the part of J. C. Finck Mineral Milling Company and the DeLore-Baryta Company. It is mutually agreed between the parties hereto that in the event said liability shall hereafter be established at a greater sum than $ 35,000.00 and the same shall be paid by Nulsen or his associates or the National Pigments & Chemical Company, then the said DeLore shall, upon demand, pay to said Nulsen one-half of such excess over and above said sum of $ 35,000.00; and in the event such tax liability shall be determined to be less than said sum of $ 35,000.00, then the said A. G. Nulsen will, upon the establishment of such fact, pay to the said DeLore one-half of the difference between the amount so determined for said tax liability and the said sum of $ 35,000.00. This matter is to be determined not later than the date of maturity (January 10, 1925) of the last installment payment hereinbefore provided.'

"At a meeting (September 29, 1921) of the board of directors of defendant, J. K. Nulsen, a son of plaintiff, offered the following resolution which was adopted:

"'Resolved, by the board of directors of this company, that the deal entered into by Mr. Albert G. Nulsen in behalf of this company with Casper P. DeLore and his associates, by which he secured the relinquishment and surrender by said DeLore and his associates, of all of their right and interest, if any, in this company, be and the same is hereby approved and the officers of this company are hereby authorized and directed to reimburse Mr. Albert G. Nulsen for any amounts of money he may have heretofore paid out on account of said deal, and to execute the notes of this company covering all further payments to be made in connection therewith, or if notes covering such further payments or any of them have already been executed by Mr. Nulsen, then in lieu of the execution of notes, the officers of the company may endorse such notes which have already been executed, in the name of this company. They are further authorized and directed to pay to J. P. Thomy (or to Mr. Albert G. Nulsen if he shall have paid to Mr. Thomy) said sum of $ 25,000.00 as contemplated in said deal, and to pay to Mr. H. F. Lodge (or to Mr. Albert G. Nulsen if he shall have paid Mr. Lodge) the sum of $ 6,000.00 as contemplated by said deal, and they are further authorized and directed to pay, as and when they shall become due and payable all fees of attorneys, accountants and appraisers incident to the abandoned consolidation of said companies, and that the total amount of all of said expenses and disbursements be set up on the books of the company as the purchase price of the property and assets of the J. C. Finck Mineral Milling Company and its subsidiaries.'

"May 14, 1923, plaintiff and his son, J. K., sold (consideration $ 800,000) to the National Lead Company 'all of the common capital stock' of defendant (according to the audit attached to the contract, first parties on December 31, 1922, owned 6743 shares out of 7500 shares of the common stock of the company), and the sale contract contained this provision:

"'Parties of the first part (the Nulsens) hereby guarantee that on December 31st, 1922, there were no liabilities of the National Pigments and Chemical Company not shown on the attached audit of Price, Waterhouse & Company, and that if any liabilities of said National Pigments and Chemical Company, other than those shown on said audit of Price Waterhouse & Company...