Ostrander v. Messmer

• Citation: 289 S.W. 609,315 Mo. 1165
• Decision Date: 15 November 1926
• Docket Number: 25443
• Parties: Jennie E. Ostrander, Appellant, v. Joseph Messmer, C. D. Klemme and Fred Messmer, Jr
• Court: United States State Supreme Court of Missouri

289 S.W. 609

315 Mo. 1165

Jennie E. Ostrander, Appellant, v. Joseph Messmer, C. D. Klemme and Fred Messmer, Jr

No. 25443

Supreme Court of Missouri

November 15, 1926

Motion for Rehearing Overruled December 31, 1926.

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Affirmed.

Abbott Fauntleroy, Cullen & Edwards and Taylor R. Young for appellant.

(1) In determining whether damages are excessive previous verdicts in the same case may be taken into consideration. Loker v. Railroad Co., 94 Mo.App. 481; Baker v Independence, 93 Mo.App. 165. (2) Where corporate stock has no market value resort may be had to sources other than the market value to determine its actual value, and the value of the shares must be found by an examination of the affairs of the company. 1 Sedgwick on Damages (9 Ed.) p. 520; 14 C. J. 719; Hewitt v. Steele, 118 Mo. 674; Deck v. Feld, 38 Mo.App. 674; 6 Fletcher's Cyclopedia Corporations, p. 6609. (3) Where there has never been any open market for the stock of a corporation, the amount of damages is for the jury. Spencer v. Hardin, 149 A.D. 667, 134 N.Y.S. 373. (4) A new trial should not be granted on the ground that the damages are excessive where the evidence is conflicting or where a determination of the question whether the verdict is excessive depends upon the credit given by the jury to the evidence. Hitt v. Kansas City, 110 Mo.App. 713; Grady v. Transit Co., 102 Mo.App. 212; Loftus v. Kansas City, 156 Mo.App. 683. (5) The proper method of curing an excessive verdict is by remittitur. Phillips v. Evans, 64 Mo. 17; Barnes v. Knott, 224 S.W. 1033; Jonesboro Railroad Co. v. United Iron Works Co., 117 Mo.App. 153.

Koerner, Fahey & Young for respondents.

(1) The legal conclusion announced on the first appeal of this case by the Court of Appeals is the law of this case below or above on subsequent appeal. Mangold v. Bacon, 237 Mo. 512. (2) The Court of Appeals has held that the particular alteration of the contract in controversy releases the defendants in this case and voids said agreement. Ostrander v. Messmer, 223 S.W. 438; Koons v. Car Co., 203 Mo. 227; Carson v. Woods, 177 S.W. 623; Barnhart v. Little, 185 S.W. 174; Kelly v. Tuhey 143 Mo. 422. (3) Plaintiff seeks to recover upon this written contract (which was voided by the alteration above referred to) and a parol modification. The original writing being rendered absolutely void and unenforceable by the alteration cannot constitute part of any contract partially in writing and partially in parol. An attempted modification or amendment of an invalid contract is not a contract at all. Cases supra. (4) The particular contract, so far as this plaintiff is concerned, and as originally entered into, is a contract for the delivery of stock, which is to be subscribed by persons other than the plaintiff, and when said corporation is formed and the stock issued to said subscribers is, by said subscribers, to be delivered to plaintiff under a contract of sale. Such a contract is for the sale of goods, wares and merchandise under the Statute of Fraud, and must be in writing, and any modification of same must also be in writing. Price v. Hart, 29 Mo. 171; Houston v. Mahoney, 219 S.W. 128; Hewson v. Peterman Mfg. Co., 136 P. 1158; Hightower v. Ansley, 126 Ga. 8; Warren v. Mayer, 161 Mo. 112; Eastern States Refrigerating Co. v. Teasdale Co., 211 S.W. 693; Devor v. Devor, 138 Mo. 181. (5) The court erred in permitting the jury to return a joint verdict against the individual defendant. (6) The court erred in refusing to give Instruction L offered by the defendants.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

The plaintiff had a verdict for $ 10,000, which the trial court set aside, specifying as the reason therefor that "the verdict is so excessive, that the jury must have entirely misapplied the evidence or been influenced by bias and prejudice." This is the second appeal in the cause. Upon the first trial the plaintiff had a verdict and judgment for $ 7,500, which was reversed by the St. Louis Court of Appeals and the cause remanded. The suit is one for damages for alleged breach, by defendants, of a contract to issue and deliver to plaintiff ten shares of stock in the Continental Brass & Foundry Company.

The petition upon which the first trial was had pleaded solely a written contract, and did not plead any modification thereof. The petition upon the second trial declared upon a contract, partly in writing and partly by parol, and also set up a modification of the contract by parol agreement, made after the execution of the written portion. Whether the entire contract, as made by the parties at the time the writing was signed, was expressed in that writing, and what were the terms if a modification of it was subsequently made, if any, were contested issues of fact.

The written instrument is set forth in the opinion of the Court of Appeals and will not be set out in full here. Preliminary to a statement of its essential provisions, a brief statement of the events leading up to its execution is necessary.

The written instrument in question was dated December 28, 1913. Prior to that time Louis F. Ostrander, the husband of plaintiff, had controlled the Continental Radiator & Foundry Company. That company went into bankruptcy. It owned trademarks and patents for certain articles of manufacture. The articles manufactured under those patents were made by the Messmer Foundry Company, a company controlled by defendants Joseph Messmer and Ferd Messmer, and by the Eagle Foundry Company, a company controlled by defendant G. D. Klemme. At the time of its bankruptcy the Continental Radiator & Foundry Company was indebted to the Messmer Foundry Company and the Eagle Foundry Company in the aggregate amount of $ 2,200. The patents owned by the Continental Radiator & Foundry Company were to be sold by the trustee in bankruptcy. Louis F. Ostrander and the plaintiff desired to purchase these patents at the sale in bankruptcy, and engaged Taylor R. Young as their attorney in that behalf. The defendants, in behalf of their respective companies, wished to continue to manufacture the articles covered by the patents. An understanding was reached by the defendants and Young, as attorney for plaintiff and her husband, that Young should purchase the patents, and that having done so a corporation should be organized to own the patents and to act as a selling agency to sell the manufactured articles. Young bought the patents at the sale, at the price of $ 1350, which sum at the time was furnished by the Citizen's Trust Company. Later the defendants Ferd Messmer and G. D. Klemme took up that indebtedness, and Young, as security therefor, or in pursuance of the arrangement of the parties, assigned the patents to the defendants. The plaintiff and her husband had agreed with Young that they would assign to him shares in the corporation to be formed, to be taken by him as his fee. These matters preceded the time of the signing of the contract of December 28, 1913. That instrument began by reciting that "the following outlines are those agreed upon between" the named parties, "covering all acts and policies agreed upon." The writing then provided that articles for the incorporation of the Continental Brass Foundry Company were to be made by the three defendants and Louis F. Ostrander, as incorporators; that the capital stock was to consist of patents, patterns and trademarks to the value of $ 1,850, and cash $ 650, a total of $ 2,500, of capital stock, divided into twenty-five shares of the par value of $ 100 each, to be subscribed for, eight shares by each of the three defendants, and one by Louis F. Ostrander; that said four subscribers were to be directors, and that the three defendants were to be the officers of the company; that after the incorporation, the shares were to be "distributed:" to defendant Klemme, seven shares; to Joseph Messmer, four shares; to Ferd Messmer, three shares; to plaintiff ten shares, and to Louis F. Ostrander, one share. Immediately after statement of the foregoing matters, there was in the said writing the following provision: "In consideration for the eleven shares of stock issued to Jennie Ostrander and Louis F. Ostrander jointly, the latter are to furnish to Ferd Messmer and G. D. Klemme, their joint note for $ 880." It is proper at this place to observe that an essential claim of plaintiff and of Louis F. Ostrander was, that the note mentioned was to be paid with dividends upon their shares in the company to be incorporated, and also that an important question arose in the case upon the fact that after the signing of the writing in quadruplicate, by the parties, Louis F. Ostrander wrote with pencil into the copy kept by him and plaintiff, after the figures $ 880, in the sentence above quoted, the words, "to be paid for with dividends from their stock." The contention of defendants was, and is, that thereby there was an unauthorized alteration and the contract was made void.

The writing further provided that Louis F. Ostrander should be employed as sales manager of the company to be incorporated that dividends of such company should first be applied to any indebtedness of the Continental Radiator & Foundry Company to the Messmer Foundry Company and to Eagle Foundry Company, remaining after the discharge in bankruptcy of the Continental Radiator & Foundry Company. It contained provisions regulating the policy of the projected company, in making sales, and as to prices and commissions, and it contained a provision that each of the stockholders, for their mutual benefit, should assign, without further consideration, any and all interest in the patents and trademarks concerning various named articles of manufacture or...