Schindler v. Sorbitz
| Decision Date | 03 January 1925 |
| Docket Number | No. 18828.,18828. |
| Citation | 268 S.W. 432 |
| Parties | SCHINDLER v. SORBITZ. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.
"Not to be officially published."
Suit by August M. Schindler against Samuel A. Sorbitz. From an order appointing a receiver and granting an injunction, defendant appeals. Affirmed.
Charles W. Rutledge, of St. Louis, for appellant.
Bass & Bass and N. C. Whaley, all of St. Louis, for respondent.
On the 30th of March, 1923, plaintiff brought suit against defendant, in which action he alleged that on the 8th of March, 1923, plaintiff and defendant entered into an agreement as partners, for the purpose of buying from the United States government certain goods, wares, and merchandise, consisting of 90,000 pounds of brass tent slips, and a certain lot of chemicals, cigars, chewing tobacco, and portable kitchen equipment; the same to be resold and the profits or losses to be shared between plaintiff and defendant.
Plaintiff also averred that defendant appropriated to his own use goods, wares, and merchandise of the approximate value of $5,000, and attempted to dispose of the same to his own private gain and appropriate and convert to his own individual use the profits derived from such sale. Plaintiff asked for a judgment dissolving the copartnership, and for an accounting, and also that defendant be enjoined from further interfering with or controlling any of the property, and that a receiver be appointed to take charge. From an order by the trial court appointing a receiver and granting an injunction, defendant in due time and manner appealed to this court.
It appears that, about one week prior to the institution of this suit, the plaintiff, Irving Sales Corporation, and the Republic Metal & Rubber Company, instituted a suit in the circuit court against this same defendant in which they as plaintiffs alleged that they and defendant were all partners in the purchase of these goods, and asking that a receiver be appointed.
After a hearing had begun on the first suit, plaintiff's counsel discovered that the corporations and the individuals named in the suit could not be partners in such a transaction, and therefore immediately instituted the suit in question.
The United States government maintained an arsenal in the city of St. Louis, where many supplies were stored that were intended for government use, and which were sold at public auction at certain designated times. The government would issue a catalogue describing these goods, and would advertise the dates on which the sales were to be held. When goods were sold at auction, the bidder was required to deposit a certain amount of money, when a purchase slip would be issued to him, and when the remainder of the purchase price was deposited he would be given the goods.
Irvin I. Mayer, general manager of the Irving Sales Corporation, and treasurer of the Republic Metal & Rubber Company, visited the arsenal in company with plaintiff and defendant a few days prior to the sale at which these goods were purchased; the sale taking place March 9, 1923. At these sales, when a deposit would be made entitling one to bid, he was given a paddle, and he would exhibit this paddle at the time of making his bids. On the date of the sale, both Mayer and defendant had paddles, but plaintiff had none.
The facts thus far stated, we think, are clearly shown and not in dispute, but there is such a divergence in the testimony given by the witnesses in this case as to what actually took place that it makes it difficult to arrive at what the real facts are.
Plaintiff contends that he and defendant agreed to buy at this sale as partners, and share equally the profits and losses; that the defendant had about $1,600 to deposit at the sale, at which they contemplated buying about $10,000 worth of goods; that plaintiff was to raise the money to pay the balance of the purchase price of any goods which they purchased at this particular sale; that plaintiff had worked for several years for the Republic Metal & Rubber Company. According to plaintiff's contention, both he and defendant, Sorbitz, went to Irvin Mayer and told him of their intentions; and Mayer agreed to furnish them the money if they would sell him, or his companies, the brass tent slips for 7 cents a pound, and certain tobacco at 40 cents a pound, if such articles were purchased by them below those prices; that if they had to pay over 7 cents a pound for the brass Mayer would advance money up to 8 cents a pound, in which event plaintiff and defendant were to sell these articles and give Mayer's company 15 per cent. of the profits. Plaintiff also states that they told Mayer about certain goods which he could buy at an advantage. Plaintiff, defendant, and Mayer visited the arsenal and looked over the goods which they desired to purchase. They did not bid against each other at the sale....
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