Oncken v. Ehrler

• Decision Date: 08 June 1920
• Docket Number: Mo. 16003.
• Citation: 222 S.W. 1045
• Parties: ONCKEN v. EHRLER.
• Court: Missouri Court of Appeals

222 S.W. 1045

ONCKEN v. EHRLER.

Mo. 16003.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

"Not to be officially published."

Action by Prank C. Oncken against E. H. Ehrler. Judgment for plaintiff, and defendant appeals. Affirmed.

Conway Elder, of St. Louis, for appellant.

John J. O'Connor, of St. Louis, for respondent.

NIPPER, C.

This action originated before a justice of the peace, and is based upon a contract or agreement in writing, whereby appellant agreed to purchase 500 shares of mining stock from respondent. A copy of the contract, which was attached to the petition, and which we here set out, is as follows:

"Contract.

                          "St. Louis, Mo., June 16, 1910
                

"In consideration of the purchase from me of five hundred shares of the capital stock of the Reiner Mining Company by Frank H. Oncken, I hereby agree to purchase the said stock from Frank H. Oncken within 60 days after demand at any time after four (4) years, and before the expiration of fifty-two (52) months, for the sum of five hundred ($500.00) dollars, with interest at the rate of 6 per cent. per annum from this date, less any dividends paid upon said stock.

"In witness whereof, I hereunto set my hand and seal at the city of St. Louis, Missouri, this 16th day of June, A. D. 1910.

                                     "E. H. Ehrler. [Seal.]
                

"Issued in duplicate."

Plaintiff recovered in the justice court. Defendant appealed to the circuit court, where plaintiff again recovered. The trial court sustained defendant's motion for new trial, on the ground that the verdict was against the weight of the evidence. On the second trial in the circuit court, plaintiff again recovered. The trial court overruled defendant's motion for new trial, and he brings the case here by appeal.

Both appellant and respondent are residents of the city of St. Louis. At the time of the execution of the original contract, plaintiff was introduced to defendant by a Mr. Schwankhaus. Plaintiff testified that Mr. Schwankhaus was a salesman for a woodenware company, that he introduced him to Ehrler, at which time he was shown nuggets and gold dust, and was told that they came from a good mine out in California. Plaintiff stated that Ehrler insisted on him taking some of this stock at $1 a share, and wrote out this contract or agreement; that he (Ehrler) was drawing $10,000 a year, and had plenty of money to stand back of that; that plaintiff paid defendant $500 for this stock, and defendant promised to give him his money back inside of a year if he wanted it; that at the expiration of the year he went back and asked for his money; that Ehrler told him everything was going fine, and in six months the stock ought to be worth $5 a share, and renewed the contract for another year; that at the end of the second year he went back again, and had his stock with him, and met with the same results; that when the last time was up he went back, and had this stock in his pocket, or had the stock in his hand. We here quote from his testimony:

"Q. What did you say to him? A. I told him would like to have my money, that I had the stock here; and he said he didn't have the money, and he was willing to give me stock in the other company.

"Q. Did he at that time say he would take back the stock and pay you? A. He said he didn't have any money that time.

"Q. Did you then and there offer to deliver him the stocks, if he would pay you? A. Yes, sir; I had the stock right there."

Defendant testified that plaintiff was always willing to renew the contract on each occasion a new contract was given for an old one; that he kept plaintiff informed continually of the condition of the company; that there was an assessment of 5 cents Per share levied on said stock in October, 1913; that he mailed plaintiff copy of the notice. Plaintiff, however, denied ever having received any notice of this assessment under which this stock was sold. Without detailing all this evidence, it seems that the life of the Reiner Mining Company was short. Plaintiff's stock was sold upon his failure to pay the assessment levied, of which he claims to have had no notice. It was bought by the president of the company for 5 cents per share, plus about 2 cents cost.

Schwankhaus, testifying for defendant, said that he had discussed the affairs of the mining company with plaintiff, and that they had talked about this assessment; that he himself owned some stock in this company, and that, in discussing this assessment with plaintiff, he told plaintiff "he was going to pay his assessment, and that plaintiff stated he felt the same way about it, but that his wife would not let him; that this conversation took place in 1913, after he had received his notice of assessment.

Plaintiff, in rebuttal, denied ever having had any conversation with Schwankhaus about any assessment.

At the close of respondent's case, various sections of the Civil Code of California relative to the levying of assessments on the capital stock of corporations, and the giving of notice thereof, as well as notice of sale of delinquent stock, and the manner of conducting same, were introduced in evidence.

Appellant insists: (1) That the evidence of the levying of the assessment and the giving of notice to ...