Sessinghaus Milling Co. v. Hanebrink

• Decision Date: 31 December 1912
• Citation: 247 Mo. 212,152 S.W. 354
• Parties: SESSINGHAUS MILLING CO. v. HANEBRINK.
• Court: Missouri Supreme Court

152 S.W. 354

247 Mo. 212

SESSINGHAUS MILLING CO. v. HANEBRINK.

Supreme Court of Missouri, Division No. 2.

December 31, 1912.

1. CORPORATIONS (§ 319) — ACTION AGAINST OFFICERS — EVIDENCE.

In an action against plaintiff's manager for using its money to pay losses in certain speculative ventures, evidence held to show no improper use of the company's funds.

2. APPEAL AND ERROR (§ 193) — REVIEW — DEMURRER — MISJOINDER OF PARTIES.

Where a demurrer for failure to state a cause of action was erroneously sustained to one of two counts in a petition, a contention on appeal that the ruling should be sustained because there was a misjoinder of counts cannot be considered, since demurrers must be specific.

3. APPEAL AND ERROR (§ 236) — UNCERTAINTIES AND SURPLUSAGE — MOTIONS.

Where no motions were aimed at such defects below, mere uncertainties and surplusage in the petition will not be considered on appeal.

4. PLEADING (§ 34) — CONSTRUCTION — COMMON LAW.

By the common law as well as by Rev. St. 1909, § 1831, providing that allegations in pleadings shall be liberally construed with a view to substantial justice, in case of an ambiguity that meaning is to be taken which will support the pleading.

5. EVIDENCE (§ 20) — PLEADING (§ 6) — PRESUMPTIONS — JUDICIAL NOTICE.

The court takes judicial notice that special skill and knowledge are necessary to the proper performance of the duties devolving upon one who assumes to manage the business of manufacturing and marketing large quantities of flour, and the acceptance of the position for compensation implies an obligation to furnish skill and good faith, and it need not be alleged, since at common law and under Rev. St. 1909, § 1833, it is not necessary to plead presumptions of law.

6. CORPORATIONS (§ 319) — OFFICERS — ACTIONS—PLEADING.

An allegation that its manager knowingly, willfully, and without right or authority "manufactured inferior flour and sold it" as and for "plaintiff's higher and finer grades," is equivalent to an allegation of bad faith and that customers were intentionally deceived, giving the plaintiff a right of action against its manager.

7. CORPORATIONS (§ 319)—ACTION AGAINST OFFICER — DAMAGES — UNCERTAINTY — DEMURRER.

An allegation that damages were claimed for injuries to plaintiff corporation's business, reputation, etc., is in effect an allegation that the good will, which is a species of property for which damages are recoverable, was destroyed, and is not demurrable in that the damages would be uncertain and difficult to calculate.

8. GOOD WILL (§ 3)—OWNERSHIP—CORPORATIONS.

A corporation may acquire, possess, and insist upon the protection of good will as well as a natural person or firm.

9. TRADE-MARKS AND TRADE-NAMES (§ 67)—BRANDS—PROTECTION.

The brands used by a miller are quasi trade-marks and are objects of the law's protection on analogous principles.

10. GOOD WILL (§ 7)—CERTAINTY—PROOF.

One claiming damages for injury to his good will must furnish sufficient data to enable the jury, with a reasonable degree of certainty, to estimate the actual damages.

Appeal from St. Louis Circuit Court; M. N. Sale, Judge.

Action by the Sessinghaus Milling Company against Christopher J. Hanebrink. Judgment for defendant, and plaintiff appeals. Reversed.

Henry H. Oberschelp, of St. Louis, for appellant. W. B. & Ford Thompson, of St. Louis, for respondent.

BLAIR, C.

Appellant commenced this action in the circuit court of the city of St. Louis to recover from respondent, its former president and manager, damages for injuries to its business from his misfeasance and also to recover certain sums of money alleged to have been lost in speculative transactions in grain. The petition contains two counts. In the first count it is alleged appellant is a Missouri corporation, engaged in manufacturing and selling flour; that respondent was its president and paid manager, having charge and managing and conducting the business from June 29, 1901, to January, 1906; that appellant "at all times herein mentioned had several grades and kinds of flour, three of which were known respectively as `SSSS,' `Patent,' and `Extra Fancy'; that it had gained an excellent reputation for fair dealing and had created a big market for its said grades and brands of flour which were well known, and by reason thereof plaintiff did a lucrative business, all of which defendant well knew"; that "during the aforesaid period, as such president and manager, and in the management and control of plaintiff's business, defendant knowingly and willfully and without any right or authority repeatedly manufactured and sold, and caused to be manufactured and sold, inferior flour as and for plaintiff's high grade flour, known as `SSSS,'" numerous specific sales being set out in the petition coupled with a further allegation of like sales to unknown persons, aggregating 10,000 barrels. There are similar allegations as to the manufacture and sale of inferior flour "as and for the high grades" known as "Patent" and "Extra Fancy," aggregating 10,000 barrels in each instance. It is further alleged: "And defendant, as aforesaid, knowingly, willfully, and without any right or authority, repeatedly caused to be ground into flour unsound wheat, uncleaned wheat, and dirt and foreign substances with wheat, and sold and caused to be sold such flour as and for clean, sound, pure flour, which sales were to various persons and customers in various quantities, aggregating in amount 15,000 barrels, but the name of the vendee and amount and date of each sale plaintiff does not know and cannot ascertain. And plaintiff states that as a direct result thereof plaintiff's reputation for fair dealing and the reputation of its finer grades or brands of flour were greatly impaired, and its business was well nigh ruined, and its capital stock and assets were seriously impaired, all of which defendant knew and must have known would be, and all of which was, the direct consequence of his said conduct, and all to plaintiff's damage," etc. The second count alleges respondent used funds of appellant in paying losses in certain designated speculative ventures, and prays judgment for the sums thus dissipated. A general demurrer to the first count was sustained, and on a trial on the second count a verdict was directed for defendant. Judgment was entered on the demurrer and the verdict, and this appeal followed.

The evidence offered on the trial on the second count tended to show respondent made a number of purchases of grain for future delivery. Witnesses explained the mysteries of "puts" and "calls," but there was no evidence respondent's transactions fell within either of such terms. The evidence indicates, so far as it indicates anything, that the purchases assailed were made on the Merchants' Exchange where appellant sold its flour. There were books and exhibits put in evidence which do not appear in this record. The evidence is confusing, uncertain, and much of it irrelevant; but the above is a sufficient summary for the purposes of the case.

1. There was no error in directing a verdict on the second count. Flour cannot be made without wheat. Appellant produced no wheat. It had to buy it. With a capacity of 400 or 500 barrels per day it was doubtless necessary to make purchases somewhat in advance in order to insure at all times a supply of grain for use in manufacturing flour. It was respondent's duty to do this. The second count does not proceed on the theory of negligence, inattention, or poor judgment in buying, but upon the theory there had been no purchases at all, merely pretended purchases. The evidence, in so far as it indicates anything, indicates purchases were made. Respondent had authority to buy. It is not contended he had no authority to sell grain previously purchased, nor that loss resulted from injudicious sales. Recovery is not sought on such grounds. Further, the trial court had before it accounts, statements, and the books of the corporation relating to the transactions forming the basis of the second count, and several of these exhibits are not in the record before us. When the question at issue is the sufficiency of the evidence, it is seldom safe to omit abstracting any part of it. The omitted exhibits may have negatived appellant's claim. There is nothing in the record as presented to convict the trial court of error in directing a verdict, and, as to the second count, the judgment must be affirmed.

2. It is contended there was a misjoinder of causes of action in the petition, and as a consequence the ruling on the demurrer to the first count must be sustained. It is sufficient answer to this that no such question was raised in the trial court. The demurrer to the first count was put solely on the ground the count stated no cause of action. There was an answer to the second count and no demurrer to the petition as a whole. Demurrers must be specific (section 1801, R. S. 1909), and the objection for misjoinder of counts in a petition must be raised by demurrer in the trial court before it can be considered here (Jamison v. Copher, 35 Mo. loc. cit. 486,...