Appeal
from Circuit Court, City of St. Louis. Hon. Benj. J. Klene
Judge.
REVERSED AND REMANDED.
Nipper, Commissioner. Reynolds, P. J. concurs; Allen and
Becker, J. J., concur in the result.
OPINION
Nipper, Commissioner.
This
suit was instituted by plaintiffs, who, in their amended
petition sought to recover from defendants, damages on
account of the breach of a certain contract filed with their
petition.
The
substance of the allegations in the petition is that the
Continental Brass & Foundry Company is a corporation, and
that the defendants D. G. Klemme, Ford Messmer and Joseph
Messmer are officers thereof; that the above named officers
compose the board of directors of the company; that on or
about the 28th of December, 1913, the defendants Klemme,
Messmer and Messmer entered into a contract with Lewis F.
Ostrander, by the terms of which they agreed to organize a
corporation with a capital stock of $ 2,500, to be divided
into 25 shares, with a par value of $ 100, and to distribute
the stock of said corporation as follows: D. G. Klemme, 7
shares; Ferd. Messmer, 3 shares; Joseph Messmer, 4 shares;
Jennie F. Ostrander, 10 shares; Lewis F. Ostrander, 1 share;
that when said company was organized, it was to employ said
Ostrander at a salary of $ 250 a month, and expenses to the
amount of $ 125 per month; that Lewis F. Ostrander is the
husband of Jennie P. Ostrander; that said contract may be
terminated, under certain conditions, by the company giving
Ostrander sixty days' notice; that the corporation was
organized in pursuance of the written contract, and that the
defendants Messmer, Messmer and Klemme partly performed the
contract by issuing but never delivering the shares of stock
to the Ostranders as agreed; that plaintiff Lewis F.
Ostrander was employed as salesman, in accordance with the
provisions of the contract, but was discharged without giving
the sixty days' notice. Plaintiffs further state that
they have carried out and fully performed all the terms of
the contract to be by them performed, but that defendants
failed and refused to carry out the terms of the contract, in
that they did not deliver or cause to be issued and delivered
to the plaintiffs, any of the stock specified in the
contract, nor have they paid or caused to be paid, the salary
and expenses of Lewis P. Ostrander. Plaintiffs ask damages by
reason of the breach of said contract, in the sum of $
11,685. The copy of the contract, as filed with the petition,
is as follows:
"EXHIBIT
"A".
"The following outlines are those agreed upon between G
D. Klemme, Perd Messmer, Jos. Messmer and L. F. Ostrander,
governing all acts and policies mentioned. Articles of
Incorporation are to be applied for incorporating the
Continental Brass & Foundry Company by G. D. Klemme, Ferd
Messmer, Joseph Messmer and L. F. Ostrander, incorporators.
"The capital stock is to compose patents, patterns and
trade-marks to the value of $ 1,850.00, cash $ 650.00, total
$ 2,500.00, which capital stock is divided into twenty-five
shares, par value $ 100.00 per share, to be subscribed for by
G. D. Klemme, eight shares; Ferd Messmer, eight shares;
Joseph Messmer, eight shares; and L. F. Ostrander, one share.
The officers of the company shall be president, Joseph
Messmer; vice-president, G. D. Klemme; secretary and
treasurer, Ferd Messmer. The directors of the company shall
be G. D. Klemme, Ferd Messmer, Joseph Messmer and L. F.
Ostrander. After incorporation the shares of stock are to be
distributed as follows: G. D. Klemme, seven shares; Ferd
Messmer, three shares; Joseph Messmer, four shares; Jennie
Ostrander, ten shares; and L. F. Ostrander,
one share. In consideration for the 11 shares of stock issued
to Jennie Ostrander and L. F. Ostrander jointly, the latter
are to furnish to Peril Messmer and G. D. Klemme their joint
note for $ 880.00. Mr. L. F. Ostrander is to be employed by
the company as sales manager at a salary of $ 250.00 per
month and expenses to the amount of $ 125.00 per month; the
latter amount, however, subject to increase or decrease as
the necessity may justify. The said employment may be
terminated by the company on sixty days' notice to L. F.
Ostrander. The cause for such termination shall be acts
committed or omitted by the said L. F. Ostrander, that shall
cause or threaten to cause serious loss or embarrassment to
the company.
"For mutual considerations and advantages by all parties
hereby acknowledged it is agreed that all dividends accruing
to and earned by the Continental Brass & Foundry Company,
as declared by its Board of Directors, shall be
proportionately applied, first, to the payment of that
portion of notes and accounts between the Continental
Radiator & Foundry Company, bankrupt, and the Ford
Messmer Mfg. Company and between the Continental Radiator
& Foundry
Company, bankrupt, and the Eagle
Foundry Company of Belleville, that shall remain unpaid after
the said Continental Radiator & Foundry Company shall
have been discharged in the at present pending bankruptcy
proceedings.
"The sales price of all articles handled for sale by
this company shall be fixed and scheduled by agreement
between the officers of the company and its sales manager,
and these prices once fixed, there shall be no reduction or
allowance granted or offered therefrom, except by mutual
consent of the officers and sales manager. The terms of sale
and credit shall be likewise fixed and adhered to by the same
parties. To the president of the company shall be reserved
the sole right to grant or extend credits.
"Commissions shall be granted and paid to L. F.
Ostrander upon all orders dated on or before December 28th,
1913, which carry instructions for immediate shipment, for
brass goods obtained by Ostrander and turned over to the Ferd
Messmer Mfg. Company, and for stove or water heater orders
obtained by Ostrander and turned over to the Ferd Messmer
Mfg. Company, and for stove or water heater orders obtained
by Ostrander and turned over to the Eagle Foundry Company. In
determining the amount Of commissions
on brass goods furnished by the Ferd Messmer Mfg. Company,
the prices enumerated in the written contract dated July
10th, 1913, existing between L. F. Ostrander and the Ferd
Messmer Mfg. Company shall apply. Said contract is hereby
cancelled and superceded by the within instrument. The
commissions on water heaters furnished by the Eagle Foundry
Company shall be the difference between the sale price as
listed on the several orders, less all freight and crating
charges, and the following cost prices, viz: heater on legs $
5.25, heater on base $ 6.15, repairs $ 3.78, water body 4 1/2
cents per pound.
"Each of the above-mentioned stockholders of this
company hereby agrees, in consideration of his or her
interest in the profits of the company, to set over and
assign to the company without further consideration, all
ownership, part ownership, interest or claim to any
improvements, trade-marks, patents or privileges or any part
thereof, covering wholly or in part, or in any way concerning
the Little Hercules Heater, Packless Quick Opening Radiator
/elves, Radiator Ells with Ball Check, and. Water Seal, and
Smokeless Water Tube Boiler, which he or she may have or in
future acquire, while stockholders
of the company, and to use his best efforts to secure for
this company such improvements, part ownership, interest or
claim which is now or may in the future be held by any
person, firm or corporation other than the Continental Brass
& Foundry Company.
"Each of the stockholders above 'mentioned, agrees
to give to all of the other stockholders, or to any of them,
the right to purchase any share or shares of stock at a price
known as the book value, and to be determined from the books
and records of the company, on the day of sale or offer of
sale, before selling or offering to sell any share or shares
of stock to any other person, and that no share or shares of
stock of this company shall be sold or offered for sale to
any other person than the above stockholders, until after the
said stockholders, each or all of them, have
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