Remmers v. Remmers

• Decision Date: 30 March 1909
• Citation: Remmers v. Remmers, 217 Mo. 541, 117 S.W. 1117 (Mo. 1909)
• Parties: REMMERS v. REMMERS et al.
• Court: Missouri Supreme Court

117 S.W. 1117

217 Mo. 541

REMMERS v.REMMERS et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

1. CONSPIRACY (§ 5)—ESSENTIALS.

Mere conspiracy, without action thereunder, is not actionable.

2. FRAUD (§ 3)—ESSENTIALS—"DECEIT."

To constitute actionable deceit, representations must be false to defendant's knowledge, must be made with intent to deceive, must deceive, and must result in injury from reliance thereon.

3. EVIDENCE (§ 393)—PAROL EVIDENCE—CONTRADICTION OF WRITTEN AGREEMENTS.

One suing at law cannot contradict the terms of a written lease to which he was a party.

4. EVIDENCE (§ 429)—PAROL EVIDENCE—ADMISSIBILITY TO AFFECT WRITING.

Antecedent or contemporaneous oral agreements are inadmissible to alter or contradict a written contract, but such contract may be shown never to have legally existed, because fraudulently accomplished or because no agreement was made in contemplation of law.

5. BANKRUPTCY (§ 390)—RECOVERY OF PROPERTY OR DAMAGES—TRUSTEE ONLY PROPER PARTY.

A bankrupt cannot sue to recover stock or damages for its conversion or wrongful procurement, the trustee being the only proper party plaintiff.

6. CONSPIRACY (§ 18)—PLEADING—EFFECT.

Allegations that a lease, advancements, and promise of other advancements made by defendants to plaintiff were not made in good faith as believed by him, but were made as part of a conspiracy by defendants to defraud plaintiff and to deprive him of his stocks and other property, and to injure him in his good name, fame and reputation, and in his business, etc., cannot be sustained as stating a cause of action for a conspiracy to injure plaintiff's reputation.

7. ASSIGNMENTS (§ 24)—RIGHT OF ACTION FOR TORT.

The common-law rule that no right of action for tort to person or property could be assigned has been much relaxed, and torts affecting the person or family relations and those affecting property are now distinguished.

8. LIBEL AND SLANDER (§ 85)—PLEADING—SUFFICIENCY.

Allegations that defendants injured plaintiff's business by seeking to prevent sales by him and by circulating false reports reflecting upon his integrity are insufficient to charge libel or slander; it being necessary to aver the offensive language and reports.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Henry J. Remmers against Frederick J. Remmers and others.Judgment for defendants, and plaintiff appeals.Affirmed.

This cause was brought to this court by appeal on the part of the plaintiff from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to plaintiff's amended petition.The petition to which the demurrer was interposed was as follows:

"Plaintiff states that, at the times herein stated, the College Hill Press Brick Works was a corporation, organized under the laws of the state of Missouri; that at said times the Carthage Marble & White Lime Company was likewise a corporation organized under the laws of the state of Missouri; that plaintiff was on or about the 19th day of July, 1902, the owner of 29 shares of the capital stock of the said Carthage Marble & White Lime Company, of the par value of $100 per share, and that said stock was, at that time, of the actual value of, to wit, $35,000; that at said times the Goesse & Remmers Building & Contracting Company was likewise a corporation organized under the laws of the state of Missouri; that on or about the 19th day of July, 1902, plaintiff was the owner of 50 shares of the capital stock of said Goesse & Remmers Building & Contracting Company, of the par value of $100 per share, and that said stock was at that time of an actual value of, to wit, $12,500; that on and prior to the 19th day of July, 1902, the defendants Remmers and Otto and Joseph J. Kulage were the owners of more than 51 per cent. of the capital stock of said College Hill Press Brick Works; that at that time said persons controlled said corporation, and acted as its officers and directors; that at said times said company owned a plant and grounds for the manufacture of bricks, located in the vicinity of College avenue and Broadway, in the city of St. Louis; that said plant had been unused for several years and was in bad repair, and to put same in condition for the manufacture of bricks would require the expenditure of large sums of money; that the grounds surrounding the plant, valuable only for the clay they contained, were covered with debris, requiring the expenditure of large sums of money for its removal; that on and prior to the 19th day of July, 1902, defendants were desirous and anxious to have the defendant the College Hill Press Brick Works to lease the said brick manufacturing plant and appurtenances to plaintiff, who at the time was inexperienced in the manufacture of bricks; that, being so desirous to lease said brick manufacturing plant and appurtenances to plaintiff, defendants, acting principally through defendantOtto Kulage, induced plaintiff, by promise of financial assistance in repairing, maintaining, and operating said plant, and by the representation that large profits could be made in the manufacture of bricks and the sale thereof, to become the lessee of said brick manufacturing plant and appurtenances; that said lease was in words and figures as follows, to wit:

"`This indenture made this 19th day of July, 1902, by and between the College Hill Press Brick Works, a corporation, party of the first part, and Henry J. Remmers, party of the second part, both parties residing and doing business in the city of St. Louis, Missouri, witnesseth: That the party of the first part, for and in consideration of the covenants and agreements, hereinafter mentioned to be kept and performed by the said party of the second part, has this day demised and leased to the said party of the second part, all of the premises, machinery, tools and appliances used in connection with brick making, situate, lying and being in the city of St. Louis, and state of Missouri, known and described as follows, to wit: "Beginning at the southeast corner of city block 3386, being the northwest corner of Bellview street and Linton avenue, and continuing on the north line of Linton avenue, crossing Von Phul and Zealand streets to alley in city block 3388, thence along the eastern line of said alley to the southern line of said alley crossing said Zealand and Von Phul streets to said Bellview street, then along the western line of said Bellview street, to the point of beginning."Also all the machinery, tools, appliances and fixtures of every nature and description, and in condition as said machinery, tools, appliances and fixtures as may be this present day on said premises.

"`To have and to hold the above said described premises with all the privileges and appurtenances belonging to the same, unto the said party of the second part, from this the 19th day of July, 1902, to the 19th day of July, 1912.

"`And the said party of the second part, in consideration of the leasing of said premises as aforesaid, does covenant and agree with the said party of the first part, to pay the said party of the first part, as rent for said premises, the sum of fifty thousand dollars in the following manner, to-wit: Five thousand dollars to-day, and forty-five thousand dollars divided into nine (9) good, satisfactory and negotiable notes of five thousand dollars each, to mature and become payable on the first day of March, 1904, 1905, 1906, 1907, 1908, 1909, 1910, 1911 and 1912.It is further agreed that at the expiration of such term of ten years, this lease may be extended for a further period of one year, at the same rental, namely, five thousand dollars per annum, payable by said second party to said first party.And it is further agreed by said party of the second part, that neither he nor his legal representatives will take any ground or clay lower than the established adjoining street grades, from said premises, nor will permit nor allow others to do so, nor will underlet said premises or any part thereof, or assign this lease, without the written assent of the said party of the first part had and obtained thereto, that he will put into repair, and at all times during the term of this lease, at his own expense, maintain and repair the kilns and boilers and press building, and aforesaid machinery, tools, appliances and fixtures on said premises that the said party of the second part will peaceably deliver all of aforesaid premises, machinery, etc., up to said party of the first part, its heirs, executors, administrators and assigns at the termination of this lease, or at the option of said party of the first part, whenever said party of the second part fails to pay the said notes, or rent when due, or to keep or perform any other of the covenants and agreements heretofore stated.

"`In witness whereof, the said parties have hereunto in the city of St. Louis, Missouri, and to duplicate copies hereof, set their hands the day and year first above written.'

"Plaintiff says that he accepted said lease upon verbal conditions mutually agreed to between the parties at the time, as follows: That the plaintiff should hypothecate or pledge his said 50 shares of stock to the Goesse & Remmers Building & Contracting Company, and his 29 shares of stock in the Carthage Marble & White Lime Company with the defendantOtto Kulage, which, as the defendants well knew at the time, was substantially all the property possessed by plaintiff, to secure an advancement of $8,000 then made to plaintiff by said Kulage, as well as further advancements, to an aggregate of $30,000, which said Kulage then and there agreed to make as needed by plaintiff in the repair, maintenance, and operation of said plant.And it was also mutually agreed that the plaintiff should have the privilege of repaying the sums so advanced, and to be advanced, at any time, with legal interest, until all said advancements were repaid, and not present the...