Ostrander v. Messmer

• Decision Date: 14 July 1920
• Docket Number: No. 16002.,16002.
• Citation: 223 S.W. 438
• Parties: OSTRANDER et ux. v. MESSMER et al.
• Court: Missouri Court of Appeals

223 S.W. 438

OSTRANDER et ux. v. MESSMER et al.

No. 16002.

St. Louis Court of Appeals. Missouri.

July 14, 1920.

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

"Not to be officially published."

Suit by Lewis F. Ostrander and Jennie F. Ostrander, his wife, against Joseph Messmer,

D. G. Klemme, Ferd Messmer, Jr., and the Continental Brass & Foundry Company, a corporation. From judgment for plaintiff Jennie F. Ostrander, the three defendants first named appeal. Reversed, and cause remanded.

O'Hallaran & Lowenhaupt and Koerner, Fahey & Young, all of St. Louis, for appellants.

Taylor R. Young, of St. Louis, and T. T. Hinde, of Madison, ill., for respondent.

NIPPER, C.

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, Ferd 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 F. Ostrander; that said contract may be terminated, under certain conditions, by the company giving Ostrander 60 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 60 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 4 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 F. 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, Ferd 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,' cash $650, total $2,500, which capital stock is divided into twenty-five shares, par value $100 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 eleven shares of stock issued to Jennie Ostrander and L. F. Ostrander jointly, the latter are to furnish to Ferd Messmer and G. D. Klemme their joint note for $880. Mr. L. F. Ostrander is to be employed by the company as sales manager at a salary of $250 per month and expenses to the amount of $125 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 60 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 Ferd Messmer Mfg. Company and between the Continental Radiator & Foundry Company, bankrupt, and the Eagle Foundry Company of Belleville, Ill., 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 28, 1913, which carry instructions for immediate shipment, for brass goods obtained by Ostrander and turned over to the Ferd Messmer Manufacturing Company, and for stove or water heater orders obtained by Ostrander and turned over to the Ferd Messmer Manufacturing 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 Manufacturing Company, the prices enumerated in the written contract dated July 10, 1913, existing between L. F. Ostrander and the Ferd Messmer Manufacturing Company shall apply. Said contract is hereby canceled and superseded 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, 4½ 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 valves, 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...