Roberts v. Anderson

• Decision Date: 02 October 1923
• Docket Number: No. 7520.,7520.
• Citation: 254 S.W. 723
• Parties: ROBERTS v. ANDERSON
• Court: Missouri Court of Appeals

254 S.W. 723

ROBERTS v. ANDERSON

No. 7520.

St. Louis Court of Appeals, Missouri.

October 2, 1923.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by E. Mason Roberts against Lorenzo E. Anderson, doing business under the firm name of Lorenzo E. Anderson & Co. Judgment for defendant, and plaintiff appeals.. Affirmed.

Frumberg & Russell, McLaren & Garesche and E. E. Wayman, all of St. Louis, for appellant.

Brownrigg, Mason & Altman, of St. Louis, for respondent.

DAUES, J.

The petition in this cause was filed July 22, 1914, and summons was served tow days later. Nearly six years later, on March 11, 1920, plaintiff filed his fifth amended petition, which, like its predecessors was assaulted by demurrer. This demurrer was sustained, and plaintiff declining to plead further, final judgment was rendered on the pleadings for defendant. Plaintiff perfected this appeal.

Since our undertaking is to determine the correctness of the court's action on the demurrer, the petition as amended, omitting formal parts, is set out in full:

"Plaintiff states that the defendant, Lorenzo E. Anderson, is a broker and deals in stocks and bonds and such commodities as wheat and grain, buying and selling the same through the Chicago Board of Trade, for the account of others, and was, between the 8th day of July, 1910, and the 3d day of November, 1910, engaged in such business.

"Plaintiff further states that between said 8th day of July, 1910, and the 3d day of November, 1910, he was from time to time, and for his own account, placing with the defendant verbal orders for the purchase and sale of wheat for future delivery.

"Plaintiff further states that on or prior to the said 3d day of November, 1910, there was in force between plaintiff and defendant certain contracts by which defendant, acting as agent and broker of plaintiff, agreed to deliver to plaintiff on demand on or before the 31st day of December, 1910, 40,000 bushels of wheat, and on demand, on or before the 31st day of May, 1911, 20,000 bushels of wheat; that said contracts were entered into on the dates, for the quantities and at the price, as follows: As to said December, 1910, wheat: July 21, 1910, 20,000 bushels, at $1.08¾ September 3, 1910, 10,000 bushels, at $1.03¼ October 14, 1910, 10,000 bushels, at 945/8 cents; and as to said May, 1911, wheat: November 3, 1910, 10,000 bushels, at 95 cents; November 3, 1910, 10,000 bushels at 95¼ cents; but that no place for the delivery of any of said wheat was agreed upon.

"Plaintiff further states that it was agreed between him and defendant that, from time to time, as and when demanded by defendant, plaintiff would deposit with the defendant, as part payment upon the purchase price of all of the wheat covered by all of the above-mentioned contracts, but not upon any specific one of said contracts, such an amount of money as should by the defendant be deemed necessary, so that defendant would be protected from loss on account of any decline in the market price either of said December, 1910, or May, 1911, wheat, and that the amount to be deposited by the plaintiff was to be determined by the defendant according to the market price from time to time of said commodities, so that in the event there should be a decline in the market price of either said December, 1910, wheat or said May, 1911, wheat below the price at which plaintiff had agreed to buy the same there would at all times be on deposit with the defendant, to the credit of plaintiff, as said part payment on the purchase price of all of said wheat, an amount equal to the difference between the prices plaintiff agreed to pay for said wheat and the market price on the dates, respectively, when said deposits should be demanded by defendant.

"Plaintiff further states that it was agreed between him and defendant that failure of plaintiff to so keep on deposit as part payment of the purchase price of said wheat an amount sufficient to protect defendant against loss by 'reason of any decline in the price of said commodity during the term of said contracts or to pay said amounts as and when rendered necessary by a decline in the price thereof to protect defendant from loss, as and when demanded by defendant, would, at the option of the defendant, cause a forfeiture of said contracts.

"Plaintiff further says that on said 3d day of November, 1910, in accordance with the terms of said contracts, as aforesaid, he had on deposit with the defendant the sum of $7,050; and that said amount was sufficient to protect the defendant from any loss that might accrue to said defendant by reason of any decline in prices on said day, but plaintiff says that he is unable to state when each item constituting said total sum of $7,050 was made, or how it arose, because plaintiff was dealing continuously with defendant from about the 8th day of July, 1910, to said 3d day of November, 1910, and because said $7,050 represents a balance to the credit of plaintiff on the books of defendant after all of plaintiff's transactions other than those set forth herein had been closed, and because it was the custom of defendant, which said custom was applied by the defendant to the transactions between him and plaintiff, to treat such total balance as may at any time remain to the credit of plaintiff on the books of defendant, whether made up of profits accruing to plaintiff as the result of past transactions or cash deposited by plaintiff in compliance with demands of defendant, as applying to all transactions between plaintiff and defendant then pending, and because by virtue of such custom of defendant, applied as aforesaid to all of the transactions between him and plaintiff, said transactions were treated as one whole transaction, and said balance so intermingled and applied by defendant that it is impossible for plaintiff now to separate it.

"Plaintiff further states that he was at all times ready and willing to, and did, comply with all the terms of said contracts, and deposited with the defendant such sums of money to secure said defendant from loss, as and when demanded by defendant, but that said defendant, notwithstanding the premises, and wholly disregarding the terms of said contracts, and in violation thereof, on said 3d day of November, 1910, wrongfully declared said contracts to be forfeited, and sold said wheat to others, and charged against plaintiff, as losses on said sale, the whole sum of $7,050 theretofore paid by him and received' by said defendant, and that thereupon defendant converted to his own use the said sum of $7,050, theretofore paid by plaintiff, as hereinbefore alleged, except the sum of $581.25 paid by the defendant to the plaintiff, and that said defendant refuses to pay any portion of the balance amounting to $6,488.75.

"Wherefore plaintiff prays judgment against the said defendant in the said sum of $6,468.75, together with interest and costs."

The demurrer contains three specifications: First, that the petition fails to state facts sufficient to constitute a cause of action; second, that it appears from the petition that the amount claimed to be due plaintiff is made up of different deposits arising at different times, but that the petition fails to show how, when, or in what manner the different items of indebtedness arose which go to make up the alleged total, and that therefore plaintiff's remedy, if any, is a suit in equity for accounting, " and, third, "that plaintiff has united in one count of the petition various...