Scheid v. Pinkham

• Decision Date: 14 April 1965
• Docket Number: No. 8386,8386
• Citation: 394 S.W.2d 570
• Parties: H. P. SCHEID, Plaintiff-Respondent, v. V. E. PINKHAM, V. V. Pinkham, and Ladco Wood Brick Mills, Limited, a Missouri Corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 570

394 S.W.2d 570

H. P. SCHEID, Plaintiff-Respondent, v. V. E. PINKHAM, V. V. Pinkham, and Ladco Wood Brick Mills, Limited, a Missouri Corporation, Defendants-Appellants.

No. 8386.

Springfield Court of Appeals, Missouri.

April 14, 1965.

James H. Keet, Jr., of Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for defendants-appellants.

Charles J. Fain, Branson, for plaintiff-respondent.

RUARK, Presiding Judge.

This is an appeal from a judgment rendered in a case which commenced as a suit for accounting and wound up as a general free-for-all melee.

Plaintiff H. P. Scheid brought suit naming as defendants V. E. Pinkham, V. V. Pinkham, and Ladco Wood Brick Mills, Limited, a corporation. The substance of plaintiff's claim was that he was a minority stockholder of the Ladco Corporation and had been a minority of one on the three-man board of directors; that the two Pinkhams were majority stockholders and constituted the majority of the board of directors, as well as president and vice-president; that the two Pinkhams conspired together and as a result of such conspiracy V. V. Pinkham issued a check against the account of the corporation in the amount of ten thousand dollars, which check was payable to Pinkham Construction Company (owned by V. E. Pinkham) in order to pay an obligation of V. E. Pinkham; that the withdrawal was not for the purpose of, or in the course of business of, the Ladco Corporation but was a misappropriation of such corporation funds and for the purpose of defrauding the corporation; that plaintiff learned of such misappropriation and sought to require repayment by appeal first to the board of directors and then to the shareholders but failed in his efforts. The prayer is for judgment for an accounting for and on behalf of the corporation 'in the sum of Ten Thousand and no/100 Dollars.'

To this pleading all defendants filed answer. Defendants V. V. Pinkham and V. E. Pinkham (each) filed separate counterclaims in which it was alleged that plaintiff had maliciously libeled each defendant by accusing him of misappropriation of funds. Each separate counterclaim demanded ten thousand dollars actual and fifty thousand dollars punitive damages.

Defendant Ladco filed counterclaim in which (by Count I) it was alleged that plaintiff had been issued shares without consideration and had been guilty of misfeasance as an officer of the corporation and prayed that the shares be cancelled. Count II sought to recover $2,929.15 which had been paid plaintiff for services, to which sum he was not entitled. Count III alleged that while plaintiff was secretary of the corporation he was guilty of misfeasance in said office by making false accusations against the other officers of the corporation; by forming a competing business and soliciting suppliers and licensors of Ladco to cancel their contracts with such corporation; and by injuring the name and reputation of the corporation. Because of this conduct Ladco prayed for twenty-five thousand dollars actual damages.

Count IV charged that the acts done as alleged in Count III were malicious and prayed for twenty-five thousand dollars punitive damages.

After trial of the case, the court found: As to plaintiff's petition, judgment in favor of the defendant Ladco and against V. E. Pinkham in the sum of ten thousand dollars; on the separate counterclaims of V. V. Pinkham and V. E. Pinkham, judgment in favor of plaintiff and against each defendant; on the counterclaim of Ladco, judgment in favor of the plaintiff and against defendant Ladco as to Counts I, II, and III. No judgment was rendered on Count IV.

All defendants filed motion for new trial. Such motion was not ruled upon within ninety days, and all three defendants appeal. The appeal is from the judgment on the plaintiff's petition and on all three counterclaims.

Our first question: Is the case here? That is, was there a final and appealable judgment disposing of all the parties and all issues? The whole case was tried to the court. There was no order for separate trial. There was no specific finding or judgment in respect to Count IV of Ladco's counterclaim. In ordinary circumstances this would require dismissal of the appeal. State ex rel. State Highway Commission v. Hammel, Mo., 290 S.W.2d 113(4); McNabb v. Payne, Mo.App., 280 S.W.2d 864, and cases cited; Collier v. Smith, Mo.App., 292 S.W.2d 627. But one of the exceptions to the general statement is that if the finding and...