Scrivner v. American Car & Foundry Co.

• Decision Date: 24 May 1932
• Docket Number: 29640
• Citation: 50 S.W.2d 1001,330 Mo. 408
• Parties: John C. Scrivner (Plaintiff) v. American Car and Foundry Company, a Corporation (Defendant), Appellant
• Court: Missouri Supreme Court

50 S.W.2d 1001

330 Mo. 408

John C. Scrivner (Plaintiff) v. American Car and Foundry Company, a Corporation (Defendant), Appellant

No. 29640

Supreme Court of Missouri

May 24, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Harry A Hamilton, Judge.

Reversed and remanded.

Hardy & Stancliffe and Watts & Gentry for appellant.

(1) The court erred in overruling the demurrer to the evidence under the second count of the amended petition at the close of the plaintiff's case, and again at the close of all the evidence in the case. Since the demurrer to the evidence under the first count of the amended petition (which counted upon a contract signed by Fogelman with full authority from defendant) was sustained, and plaintiff took a nonsuit as to the first count, which he has never moved to set aside, and by the instructions which plaintiff offered, his right of recovery was limited to the finding of the signing of an instrument of writing by Fogelman which he was not authorized to sign and which became a contract, if at all, only by virtue of ratification thereof, the claim of a cause of action based upon a contract duly executed by authority of defendant has entirely disappeared from this case. Bushman v. Barlow, 292 S.W. 1050. Plaintiff is bound by the theory adopted by him in the trial court. Brier v Bank, 225 Mo. 684; Pienieng v. Wells, 271 S.W 66; In re McMenamy's Guardianship, 270 S.W. 672; Snyder v. A. C. & F. Co., 14 S.W.2d 606. The plaintiff cannot recover on the theory of ratification for the following reasons: (a) Plaintiff offered no substantial evidence to show that plaintiff's Exhibit B, the instrument of writing which he claims to be a copy of an original instrument on which he bases his right of recovery, and which he says has been lost, is a true copy of said original instrument. The evidence of Hayden Scrivner, brother of the plaintiff, is so preposterous and so contradictory in its various parts that it constitutes no substantial evidence whatever and should be disregarded. Where there is no substantial evidence to support a branch of plaintiff's case, or the whole case, such evidence as has been offered being, at best, but a scintilla of evidence, must be wholly disregarded. Williams v. Railroad, 257 Mo. 165; Pleasants v. Fant, 89 U.S. 116; Dutcher v. Railroad, 241 Mo. 167; Cluett v. U. Electric L. & Power Co., 220 S.W. 865; Layton v. Chinberg, 282 S.W. 434; Van Raalte v. Graff, 253 S.W. 223. (b) Plaintiff offered no substantial evidence whatever to show ratification of the alleged unauthorized written contract of September 28, 1911. The only evidence offered in an effort to show that defendant, through any agent whose knowledge would be binding upon defendant, had any knowledge whatever of the contract claimed to have existed, was that of Wilford Scrivner, who claimed to have heard Fogelman state to the company's general manager, Mr. Carry, that the furnaces which he pointed out were Scrivner patent furnaces which defendant had under lease. That statement constitutes no evidence whatever of ratification, for two reasons: First, plaintiff's cousin could not possibly have heard what he says he heard under the circumstances detailed by him, and, second, even if he heard the exact words which he claims to have heard, still his statement constitutes no evidence whatever of ratification, because it does not tend to show knowledge on the part of Mr. Carry of the particular contract claimed, and all the terms thereof, and showing such knowledge was absolutely essential in order to make prima-facie proof of ratification. Lead & Zinc Investment Co. v. Lead Co., 251 Mo. 740; Lindhorst v. Orphan Asylum, 231 Mo. 397; Pennsylvania Taxi Meter Co. v. Cressey, 191 F. 337; Madison v. Williams, 16 S.W.2d 629; Fritsch v. Nat. City Bank of St. L., 24 S.W.2d 1067; 2 C. J. 467 et seq. There must be actual knowledge, as distinguished from mere opportunity for acquiring actual knowledge. Rogers-Hill Co. v. San Antonio Hotel Co., 7 S.W.2d 603; Meechem on Agency, secs. 393, 394, 395; Trustees v. Bowman, 136 N.Y. 526; Kelley v. Railroad, 146 Mass. 496; Iron City Bank v. Fifth Natl. Bank, 47 S.W. 533, 92 Tex. 436, 49 S.W. 368; Bank v. Marr, 129 Mo.App. 26; Case v. Packing Co., 105 Mo.App. 168; Grafeman Dairy Co. v. Bank, 228 S.W. 359; Grafeman Dairy Co. v. Bank, 235 S.W. 435; Steunkle v. Ry. Co., 42 Mo.App. 73; Story on Agency, sec. 239; Windsor v. Bank, 18 Mo.App. 665; Bank v. Heating & Elec. Co., 145 Mo.App. 319; Mining Co. v. Taylor, 247 Mo. 28; Thompson on Corporations (2 Ed.) sec. 1960; Lead & Zinc Co. v. Lead Co., 251 Mo. 721; Bartlett v. Garrett, 188 Mo.App. 144, 148; Hyde v. Larkin, 35 Mo.App. 365; Johnson v. Fecht, 94 Mo.App. 605; 31 Cyc. 1253; 2 Waterman on Corporations, p. 384; Middleton v. Railroad, 62 Mo. 579; Bank v. Gay, 63 Mo. 33; Mechem on Agency, sec. 128; Webb v. Alington, 27 Mo.App. 571; Wann v. Scullin, 235 Mo. 629; St. Louis v. Reucking, 232 Mo. 325; 1 Dillon on Municipal Corporations (4 Ed.), 463; Winklebach v. Bank, 155 Mo.App. 1; Pitts v. Steele Mercantile Co., 75 Mo.App. 221; Walker v. Hassler, 240 S.W. 257; Herold v. Trust Co., 242 S.W. 124; Large v. Frick Co., 256 S.W. 90; Morris v. Butler, 138 Mo.App. 378; Lingenfelder v. Leschen, 134 Mo.App. 55; Butts v. Rubber Co., 169 Mo.App. 657; Cannon v. Gibson, 162 Mo.App. 386; Craven v. House, 138 Mo.App. 251; Flemming v. Anderson, 232 S.W. 718; St. Louis Gunning Adv. Co. v. Wanamaker & Brown, 115 Mo.App. 270; Fowler v. Cobb, 232 S.W. 1084; Cummings v. Hurd, 49 Mo.App. 139; Berkshire v. Holcker, 216 S.W. 556; Cravens v. Gillilan, 63 Mo. 28; Chouteau v. Allen, 70 Mo. 290; Sanborn v. Bank, 115 Mo.App. 50; Smith v. Bank, 120 Mo.App. 527; Kirkpatrick v. Bease, 202 Mo. 471; 2 C. J. (Agency) secs. 93-98; 14a C. J. secs. 2233-2247; Bassiack v. Aetna, etc., Co., 246 F. 975; Watkins Salt Co. v. Mulkey, 225 F. 739; Pa. Taxi Co. v. Cressey, 191 F. 337; Western Nat. Bank v. Armstrong, 152 U.S. 346. The burden to prove ratification is upon plaintiff. Minter v. Cupp, 78 Mo. 33; West Pub. Co. v. Corbett, 165 Mo.App. 11. (c) Plaintiff seeks to recover on a written contract which he says he and Fogelman signed on September 28, 1911, and which he says has since been lost through burglary, by the terms of which instrument he claims it was provided that whatever was to be paid for the use of the patented device was not to be due or paid until September 28, 1924. On September 22, 1920, plaintiff made affidavit, attached to the articles of incorporation of the Scrivner Fire Clay Products Company, showing the transfer of the patent in question to the persons named as the first board of directors of the new company, and the alleged value of that patent, stated to be $ 300,000, constituted the sole asset of the corporation, which was incorporated for $ 300,000. Under the law, all rentals accruing under a patent after the date of its transfer belong to the person to whom the patent is sold and not to the original patentee. That the law governing this subject is as stated by us is established by the following authorities: Bottlers Seal Co. v. Rainey, 235 N.Y. 369, 122 N.E. 200; Spring v. Domestic Sewing-Machine Co., 13 F. 449; Sec. 4919, R. S. U.S.; Crown Co. v. Nyle Tool Works, 261 U.S. 41; Waterman v. McKenzie, 138 U.S. 255; Moore v. Marsh, 7 Wall. 515; Herman v. Detroit Shipbuilding Co., 295 F. 423, and cases cited; Automatic Switch Co. v. Cutler Hammer Mfg. Co., 147 F. 250; Ecaubert v. Appleton, 67 F. 917; Ross v. Fort Wayne, 63 F. 471; Mtheson v. Campbell, 69 F. 614; Jones v. Berger, 58 F. 1006; Emerson v. Hubbard, 34 F. 327; 48 C. J. p. 276, sec. 449; Chemical Foundation Co. v. Du Pont de Nemours, 29 F.2d 597. (2) The court erred in admitting in evidence plaintiff's Exhibit B, which is claimed to be an exact copy of the instrument of writing which plaintiff alleges was signed by him and Fogelman, defendant's plant superintendent, at Madison, on September 28, 1911. All of the evidence offered by plaintiff wholly failed to show that the Plaintiff's Exhibit B was an exact copy of the instrument which plaintiff says was signed on September 28, 1911. Hence the admission of Exhibit B was error. Consumers Brewing Co. v. Hardaway, 2 Ohio App. 171; In re Guinosso's Estate, 13 Cal.App. 518, 110 P. 335; 22 C. J. p. 1066, sec. 1377; Caine v. Briscoe, 248 P. 774; Hay v. Am. Fire Clay Co., 162 S.W. 668; The Barbed Wire Patent, 143 U.S. 284; Gillmore v. Fitzgerald, 26 Ohio St. 171; Mack v. Spencer Optical Co., 52 F. 820. The court erred in (a) permitting the witness Mrs. Mary Susan Haun to testify, in cross-examination by plaintiff's counsel, that her husband did not make certain statements in the same conversation in which, she, had testified that plaintiff had offered her husband $ 15,000 to give false testimony, and (b) in permitting the plaintiff, when called for the first time in rebuttal, to testify that Haun made the statements on the occasion in question which Mrs. Haun said he did not make. The statements about which Mrs. Haun was asked (which she said her husband did not make) and which plaintiff testified Haun made, did not in any way tend to explain or qualify or contradict the statement by Mrs. Haun in her direct examination on the subject of the offer of $ 15,000 to her husband by plaintiff. Both the cross-examination of the witness Mrs. Haun and the examination of plaintiff in rebuttal, in regard to statements made by Haun, Mrs. Haun or plaintiff on the occasion referred to by Mrs. Haun should have been limited to matters which tended to explain or contradict the particular statement made by Mrs. Haun in her direct examination, to-wit, that plaintiff had offered her husband $ 15,000 to give testimony which was not true. Plaintiff was permitted to wander far afield and to give evidence of...