Rollestone v. National Bank of Commerce
Citation | 252 S.W. 394,299 Mo. 57 |
Decision Date | 06 April 1923 |
Docket Number | No. 23125.,23125. |
Parties | ROLLESTONE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS et al. |
Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Circuit Court; Granville Hogan, Judge.
Action by A. A. Rollestone against the National Bank of Commerce in St. Louis and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Irvin V. Barth, Forest P. Tralles, and Watts, Gentry & Lee, all of St. Louis, for appellants.
Judson, Green & Henry, of St. Louis, for respondent.
This is an action in equity to enforce a trust in personal property and compel an accounting. The defendants are the executors of the will of John T. Milliken, deceased.
It next set out in full two letters, hereinafter quoted at length, one of which was written by Milliken. This part of the petition, by intendment, at least, amounted to an averment that Milliken declared that he was carrying Rollestone for 10,000 shares of stock as he had agreed. It next alleged that Milliken received certain dividends on the 10,000 shares; that he sold the stock on or about March 1, 1915, at $4 per share; that no part of the proceeds of the sale of the stock "so held by Milliken as trustee for plaintiff, and no part of the said dividends so received by said Milliken as trustee for plaintiff, as aforesaid, were paid over to' him by said Milliken, or by the defendants, his executors," but that said sums had been mingled by Milliken with his own property and assets, and were then in the possession of his executors as part of the assets of his estate. The prayer was for the enforcement of the trust and for an accounting.
The answer was a general denial and pleas of the five-year statute of limitation, the ten-year statute and lathes.
The evidence on the part of plaintiff tended to establish the following facts:
On January 1, 1906, the Golden Cycle Mining Company, a corporation with a capital stock of $1,500,000, divided into shares of the par value of $1 each, was operating a gold mine at Cripple Creek, Cole. John T. Milliken was its president, and owned 595,000 shares of its capital stock. Plaintiff, Rollestone, was treasurer, but did not own any of its stock. He was also cashier and vice president of, the Bank of Victor at Victor, Colo. Milliken was also president of the Milliken-Helm Commission Company of St. Louis. He was a man of great wealth, but was still pursuing with zest the fascinating game of piling up additional millions. Among other activities he was extensively engaged in speculating in mines and in oil and mineral lands and leases. Colorado afforded in part the field of his operations, and here many of his most important transactions were effected through Rollestone or with his assistance. With respect to such matters their relations were intimate and confidential.
In January, 1906, Milliken, with the assistance of Rollestone, purchased an additional 600,000 shares of the capital stock of the Golden Cycle Mining Company at the price of 75 cents per share. This purchase gave him control of the company, and eliminated a rival faction which had been trying to obtain the control. Shortly after the acquisition of the additional stock by Milliken he said to plaintiff, in substance:
This statement was made in the bank of Victor, and in the presence of T. C. McDonald, who was assistant cashier of the bank, and also assistant to Rollestone as treasurer of the Golden Cycle Mining Company. In these capacities he was present at many of the conferences between Milliken and Rollestone. In reply to Milliken's offer to carry a block of the stock for him, Rollestone said he would accept 10,000 shares of it. Soon after the conversation at the Bank of Victor just referred to the following letters were exchanged between Milliken and Rollestone:
In the summer or early fall of 1907, a little more than a year after the letters just quoted were written, Milliken was at Colorado Springs. In the course of a conversation which took place between him and McDonald at that time and place, with reference to some leases, Milliken said:
Milliken seems never to have disposed of any of the Golden Cycle mining stock that he acquired from time to time until March 11, 1915, when he sold his entire holdings, amounting at that time to 1,431,623 shares, at $2.662/3 per share. He received dividends on the stock from 1910 to 1915, inclusive, ranging from 3 per cent. to 94 per cent. of the par value.
From many letters written by Milliken to Rollestone from 1906 to 1911 it abundantly appears that the cordial relation between the two remained unbroken during that time, and that Milliken was all the while availing himself of Rollestone's services in the capacity of confidential agent. During the summer of 1911, however, Milliken, who had also acquired control of the Bank of Victor, discharged Rollestone from the services of both the Bank and the mining company. What prompted Milliken to dismiss Rollestone from these positions is not disclosed by the record. The latter when let out was wholly without means. He first went to Denver, where he remained a time; he next made a trip to Europe, and then to South Africa. Returning to this country after a year or so, he went to Oklahoma, seeking to get into the oil business. He was residing there at the time he instituted this suit.
On October 1, 1912, one E. J. Boughton, as attorney for plaintiff, wrote Milliken the following letter:
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