Oglebay v. Corby

• Decision Date: 12 November 1888
• Citation: 9 S.W. 584,96 Mo. 285
• Parties: Oglebay v. Corby et al., Appellants
• Court: Missouri Supreme Court

9 S.W. 584

96 Mo. 285

Oglebay v. Corby et al., Appellants

Supreme Court of Missouri

November 12, 1888

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

Henry N. Ess for appellants.

A reversal of this judgment is asked because of the refusal of the court to give the instructions asked by defendant, for its refusal to grant a new trial, and because the verdict and judgment are so grossly against the weight of evidence as to shock the moral sense and to show that the court below could not have come to the conclusion except from oversight partiality or prejudice.

C. O Tichenor for respondent.

(1) The herdics were sold and delivered at an agreed price, more than a month prior to the incorporation of the herdic company. The answer claims that the debt for said herdics became the debt of the corporation; that it "assumed the payment of the purchase money thereof." To make a sale there must be all of these elements: First, parties competent to contract second, mutual assent; third, a thing which is transferred; fourth, a price paid or promised. A sale of the herdics is admitted to have been made July 15, 1881. It could not have been made to a corporation which did not exist until August 17, 1881. If there was a delivery, it was to defendants. If the title vested, it went from plaintiffs to defendants. If a debt was due, it was by them. Kilner v. Baxter, L. R. 2 Com. Pl. 174; In re Hotel Co., L. R. 33 Ch. Div. 16. Defendants do not now, nor can they, claim they were acting as agents; there cannot be an agent without a principal. Further, if defendants had purchased as a corporation, and if plaintiff had believed he was selling to one, yet if they were not incorporated they would be liable as individuals. Hunt v. Saulsbury, 55 Mo. 311. (2) The answer, if it means anything, says: "True, we owed you for the herdics; we sold them to the company, and it owed us for them; we agreed to release the company if it would assume our indebtedness to you, and you agreed to release us because the company assumed our debt to you." In other words, there was a new contract, to which all were parties. Chapman v. Kerr, 80 Mo. 161. (3) In Bott v. Wood, 56 Miss. 140, the court say: "The destruction raises a presumption that the document, if produced, would militate against the party destroying it; therefore, slight evidence of the contents will usually in such cases be sufficient." In Hayes v. Bayliss, 82 Mo. 212, it is said, where an instrument is destroyed by one party, every inference favorable to the other party should be drawn. (4) The appeal is without merit. Plaintiff has waited for nearly seven years for his money. It ought to be affirmed, with damages.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

This action is to recover the sum of $ 2,484.40 for four herdic coaches alleged to have been sold and delivered to defendants on the fifteenth of July, 1881. Defendants in their answer set up that the sale and purchase of said coaches was made in view of a corporation thereafter to be formed and which was in fact organized and incorporated on the seventeenth of August, 1881. It avers that on or about the twelfth of July, 1881, defendants entered into a contract in writing with plaintiff whereby they promised and agreed to become responsible to plaintiff in proportion to the number of shares of the capital stock to be held by each for the price of said coaches, in the event that said company should not be incorporated, but that if it should become incorporated, then and in that event defendants should be and were discharged from all further liability upon or by reason of their promise and agreement in said writing contained, as aforesaid, and from all responsibility for the purchase money for said coaches, which should thereupon become the debt of the said company so to be formed as aforesaid; that said company was afterwards, to-wit, on the seventeenth of August 1881, duly incorporated for the purpose, and received and accepted said coaches, pursuant to the purposes of its incorporation, and assumed the payment of the purchase money therefor. It is further averred that after the organization of said company, the said corporation by its directors requested plaintiff to extend the time of payment for said coaches sixty days in consideration of their agreement to pay six per cent. interest, to which plaintiff assented and disclaimed all right of action against defendants by reason of said writing or the sale of said coaches, and said instrument of writing was thereupon destroyed. This answer was denied by replication and on the trial of the cause before the court, without the intervention of a jury, judgment was...