Sharon v. K.C. Granite & Monument Co.

• Decision Date: 09 January 1939
• Docket Number: No. 19233.,19233.
• Citation: 125 S.W.2d 959
• Court: Missouri Court of Appeals
• Parties: A.M. SHARON, DEFENDANT IN ERROR, v. KANSAS CITY GRANITE & MONUMENT COMPANY, A CORPORATION, PLAINTIFF IN ERROR.

125 S.W.2d 959

A.M. SHARON, DEFENDANT IN ERROR, v. KANSAS CITY GRANITE & MONUMENT COMPANY, A CORPORATION, PLAINTIFF IN ERROR.

No. 19233.

Kansas City Court of Appeals. Missouri.

January 9, 1939.

Error to Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.

AFFIRMED.

Burns & Woods for plaintiff in error.

(1) The Court erred in the giving of Instruction No. 5 on behalf of the plaintiff for the reason that it gave the jury a roving commission and authorized it to consider. "All other facts and circumstances shown in evidence." May v. Chicago B. & Q.R. Co., 284 Mo. 508, 225 S.W., l.c. 666. (2) The Court erred in giving Instruction No. 3 on behalf of the plaintiff wherein it told the jury that the signature of D.J. Smith appearing on the face of certificate No. 13 under the word secretary should be taken and considered as the genuine signature of D.J. Smith and authorized the jury to compare the disputed signature on the back of the stock with the signature on the face in determining that issue. This erroneously instructs the jury to build a presumption upon a wrongful presumption by the court and is contrary to the evidence. Hays v. Hogan, 273 Mo. 1, 200 S.W., l.c. 292; Hudson Transport Co. v. American Linseed Co., 180 N.Y. Supp. 17; Cleavenger v. Moore, 71 N.J.L. 148, 58 Atl. 88; Merchants Bank v. Goodin, 76 Va. 503; Halstead v. Dodge, 51 N.Y. Super. Ct. 169. (3) The Court erred in giving plaintiff's Instruction No. 1 for the following reasons: (a) Because it failed to require the jury to find that certificate No. 13 for five shares issued to D.J. Smith was delivered to the plaintiff's transferor by authority of D.J. Smith. Mathes v. Switzer Lumber Co., 173 Mo. App. 239, 158 S.W. 729; Wade v. Boone, 184 Mo. App. 88, 168 S.W. 360; Matlack v. Paregoy, 188 Mo. App. 95, 173 S.W. 8; Renick v. Brooke, 190 S.W. 641 (Mo. App.); Elmer v. Flett, 297 S.W. 985 (Mo. App.). (b) Because it failed to require the jury to find that the failure of the defendant company to transfer said certificates when presented by plaintiff's lawyer was wrongful. Wilkinson v. Misner, 158 Mo. App. 551, 138 S.W. 931; Miller v. Lange, 84 Mo. App. 219; Withers v. Lafayette County Bank, 67 Mo. App. 115; Fletcher Cyclopedia, on Corp., Permanent Edition, Par. 5114. (c) Because it failed to recognize the defense offered by the defendant that the plaintiff refused or failed to furnish proof of authority to transfer ownership and genuineness of the endorsement on the certificates in question when requested by the defendant. Cases under Assignment of Error VII; Thornton v. Mesereau, 168 Mo. App. 1, 151 S.W. 212. (d) Because it failed to require the jury to find that the plaintiff was owner of the certificates in question at the time demand for transfer was made. Thornton v. Mesereau, 168 Mo. App. 1, 151 S.W. 212. (e) By including therein the following language: "And you further find that A.M. Sharon had no knowledge or notice of any claim to certificates No. 12 and 13 in opposition to his claim of ownership for more than five years before December 27, 1913," thereby attempting to establish a right of recovery by undisputed ownership so far as the knowledge of the plaintiff was concerned and misled the jury into the belief that the certificates were the stock. Richardson v. Busch, 198 Mo. 174, 95 S.W. 894; Williams v. Everett, 200 S.W. 1045 (Mo.). (4) The Court erred in refusing to give Instruction No. 11 for the defendant as plaintiff wholly failed to prove the genuineness of the endorsement D.J. Smith on the back, the agency of A.W. Smith to transfer the certificate, and there is undisputed proof that plaintiff failed to furnish proof of his right to a transfer on request of defendant. (5) The Court erred in giving plaintiff's Instruction No. 4 because it covered a disputable presumption that may be drawn only in the absence of all evidence of facts and circumstances and ignored evidence which tended to overcome such presumption. Lee v. Publishers, Geo. Knapp & Co., 55 Mo. App. 390; National Bank of Webb City v. Newell Morris Royalty Co., 259 Mo. 637, 168 S.W. 699; Hunt v. City of St. Louis, 278 Mo. 213, 211 S.W. 673; Miller v. Busey, 186 S.W. 983 (Mo. Sup.). (6) The Court erred in refusing to give Instruction No. 12 offered on behalf of the defendant. It properly placed the burden upon plaintiff and by refusing the instruction and giving instructions No. 3 and No. 4 the court shifted the burden of proof to the defendant to exonerate itself. Ranney v. Lewis, 182 Mo. App. 58, 167 S.W. 444; Berger v. St. Louis Storage Commission Co., 116 S.W. 444, 136 Mo. App. 36; Mayer v. Old, 51 Mo. App. 214; Nance v. Hayward, 183 Mo. App. 217, 170 S.W. 429. (7) The Court erred in refusing to give Instruction No. 13. It is based upon the right and duty of the defendant corporation to protect itself in stock transfers and the court by rejecting the instruction deprived the defendant of that right. Western Union Telegraph Co. v. Davenport, 97 U.S. 369; Spellisy v. Cook & Bernheimer Co., 68 N.Y. Sup. 995; Nagel v. Ham, Yearlsey & Ryrie, 88 Wash. 99, 152 Pac. 520; Edwards v. Sonoma Valley Bank, 59 Cal. 136; Hughes v. Drovers & Mechanical National Bank, 86 Maryland, 418, 38 Atl. 936; Banker v. Atlantic Coast Line Railroad Co., 173 N.C. 365, 92 S.E. 170; Livezen v. N. Pac. Railroad, 157 Penn. St. 75, 27 Atl. 379; Davis v. Nat. Eagle Bank, 50 Atl. 530 (R.I.); Peck v. Providence Gas Co., 17 R.I. 275, 21 Atl. 543; Palmer v. O'Bannon Corp., 253 Mass. 8, 149 N.E. 112. (8) The Court erred in refusing to give defendant's Instruction B in the nature of a demurrer for the following reasons: (a) As to certificate No. 13, defendant never proved the agency of A.W. Smith to transfer or deliver the certificates to plaintiff's transferor. (b) As to certificate No. 13 and the undisputed proof that plaintiff failed to furnish proof of his right to a transfer on the request of the defendant. (c) As to certificate No. 12 for ten shares and the undisputed proof that the plaintiff failed to furnish proof of his right to a transfer on the request of the defendant. (9) The Court erred in rejecting competent, material and relevant evidence offered by the defendant in the following respects: (a) In rejecting the offer of the stub of stock certificate No. 12 of the stock book of defendant corporation and the Stubs and stock certificates No. 20, 21 and 22, of said stock book, stubs to stock certificate No. 12 being identified as defendant's Exhibit 3, and upon which was written the following: "This certificate was destroyed by fire or lost, A.W. Smith," and the stubs and stock certificates No. 20, 21 and 22 (Abs. 136, 137, 138, and 139) which last three exhibits show the reissue and transfer of the stock represented by stock certificate No. 12; certificate No. 20 being for eight shares issued to R.D. Guidici, February 7, 1914: Certificate No. 21 for one share issued to A.W. Smith on February 7, 1914: Certificate No. 22 for one share issued to W.H. Sanford, dated February 7, 1914, which certificates and stubs established a conversion of said stock in 1914 and destroyed plaintiff's title to said stock. See offer of proof Abstract 140. Newman v. Mercantile Trust Co., 189 Mo. 423, 88 S.W. 6; Wilkinson v. Misner, 158 Mo. App. 551, 138 S.W. 931; Grier v. Lafayette County Bank, 128 Mo. 559, 30 S.W. 319; Withers v. Lafayette County Bank, 67 Mo. 115; Kansas City Casualty Co. v. Westport Avenue Bank, 191 Mo. App. 287, 177 S.W. 1092; Minchew v. West, 78 Colo. 254; Claremore v. Bryant, 124 Okla. 106; McNeal v. Tenth National Bank, 46 N.Y. 625; Business Men's Assurance Ass'n v. Williams, 127 Mo. App. 575, 119 S.W. 439; Keller v. Eureka Brick Machine Mfg. Co., 43 Mo. App. 84; Shaw v. Goebel Brewing Co., 202 Fed. 408; Sections 860 and 862, Revised Statutes of Missouri, 1929; Brown v. Irving Pitt Mfg. Co., 316 Mo. 1023, 292 S.W. 1023; Maynard v. Doe Run Lead Co., 305 Mo. 356, 265 S.W. 94; Smith v. Newby, 13 Mo. 159. (b) In rejecting Exhibits 13 to 16 inclusive offered by the defendant which were notes of the defendant corporation issued and outstanding in 1930 and the liability of said corporation, said notes being for $3500, $3700, two of $5000 each and one of $6650. Brinkerhoff-Farris Trust & Sav. Co. v. Home Lumber Co., 118 Mo. 447, 24 S.W. 129. (c) In rejecting Exhibit No. 17 which exhibit was the original articles of corporation and showed a true signature of D.J. Smith for the jury to consider and compare with the questioned signature on the back of stock certificate No. 13. Section 1751, Revised Statutes of Missouri, 1929; State v. Stark, 202 Mo. 210, 100 S.W. 642. (10) The Court erred in admitting incompetent and irrelevant testimony offered by the plaintiff as follows: (a) By permitting witness S.P. Sharon to testify concerning transactions with A.W. Smith, deceased whereby S.P. Sharon, transferor of plaintiff, acquired the stock upon which this action was based. Section 1723, Revised Statutes of Missouri, 1929; Eaton et al. v. Curtis, 319 Mo. 660, 4 S.W. (2d) 819. (b) By permitting S.P. Sharon to testify concerning an alleged transaction with R.D. Guidici, deceased, concerning the alleged purchase of said stock by R.D. Guidici and the alleged failure of R.D. Guidici to deny witnesses ownership. State Savings Ass'n v. Nixon-Jones Printing Co., 25 Mo. App. 642; Gregmore Orchard Co. v. Gilmour, 159 Mo. App. 204, 140 S.W. 763; Citizens Bank of Edina v. Kriegshauser, 211 Mo. App. 33, 244 S. W. 107. (c) By permitting the introduction in evidence of an alleged financial statement of the company made by J.P. Sexton, secretary of the company, to the Bradstreet organization. Abraham Arndt & Bros. v. N.Y. Fruit & Water Co., 140 N.Y. Sup. 471; Main Street Tobacco Warehouse v. Bain Moore Tobacco Co., 198 Ky. 177, 250 S.W. 90; Independent Oil Men v. Ft. Dearborn National Bank, 311 S.W. 278. (d) By permitting witness Kempster to testify as to the alleged good will value of the defendant company in 1930. Gash v....