O'Shea v. Lehr

• Decision Date: 07 April 1914
• Parties: JOSEPH O'SHEA, Appellant, v. WILLIAM F. LEHR, Respondent
• Court: Missouri Court of Appeals

165 S.W. 837

182 Mo.App. 676

JOSEPH O'SHEA, Appellant, v. WILLIAM F. LEHR, Respondent

Court of Appeals of Missouri, St. Louis

April 7, 1914

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.

AFFIRMED.

STATEMENT.--This is a suit for $ 2000 alleged to have been loaned by plaintiff to defendant. Defendant denies that he borrowed the amount but says plaintiff paid it to him on a note of $ 5000. The finding and judgment were for defendant and plaintiff prosecutes the appeal.

Plaintiff says he and defendant were partners in the matter of wrecking some buildings and the sale of the materials therefrom thus acquired, and during the time, on May 22, 1910, he loaned to defendant $ 2000. Defendant denies that he was interested as a partner with plaintiff in the matter of wrecking buildings but says he advanced a certified check of $ 5000 to plaintiff to be deposited with the city authorities as an earnest of good faith when the contract was let to plaintiff, and for this sum plaintiff executed to him the $ 5000 note referred to. Touching this matter, plaintiff insists that he did not understandingly execute a note to defendant but signed a writing, which is in form a promissory note, at defendant's request, believing it to be a mere receipt for the $ 5000 draft, as it was so denominated by defendant at the time.

Plaintiff's counsel, in his brief, has stated the facts pertaining to the controversy and out of which it arises most favorably to his client, and we reproduce that statement here as revealing a general outline of the evidence.

"On September 2, 1908, John P. Boyce, commissioner of supplies for the city of St. Louis, began advertising for sale all of the certain condemned buildings located on city blocks 208 east and 208 west of said city, being the city blocks on which the new municipal court buildings now stand. It was stated in the advertisement that 'the successful bidder will take down all structures to the ground line and remove all the material on the aforesaid premises, leaving cellars cisterns, wells, vaults or other excavations free from debris of any and all kinds on or before December 15, 1908.' The bidder, by the terms of said advertisement, was required to present with his bid a certified check for $ 5000 on some bank or trust company of said city, payable to the order of the city treasurer, as a guarantee that all the requirements of the contract would be fulfilled. All bids were to be presented to said commissioner on or before September 14, 1908, the day on which said bids were to be opened.

"On September 11, 1908, plaintiff, in response to a postal card which he received from the Kellermann Contracting Company asking him to call and figure on some work, called at the office of that company in the Roe building, Fifth and Pine streets. When he called at said office he met defendant, who was the secretary and treasurer of said company. Among other questions which defendant asked appellant at that time was the question of whether or not plaintiff knew of said buildings that were going to be wrecked, and which were situated on the blocks of ground on which said court buildings were to be erected. And defendant also asked plaintiff if he was going to figure on that job. Plaintiff shrugged his shoulders and shook his head and told respondent that he thought it was too big a job for him, appellant, to handle. This was on the 11th day of September, 1908, only two days before the day on which the bids for said work had to be presented. Defendant then told plaintiff to go to the supply commissioner's office and see what he could do. Plaintiff in response to this request of defendant said: 'All right, I will run right up there and see what the conditions are and figure the job.' Appellant did go to the office of said supply commissioner and met there a Mr. Bakersmith, in charge of said office, and asked him what the conditions were in regard to said work, and was told that it required a $ 5000 certified check, and Mr. Bakersmith then told appellant that the $ 5000 certified check that was required to be presented with the bid would be applied toward the payment of the buildings in case they were the successful bidders. Plaintiff then returned to defendant's office and told defendant what Mr. Bakersmith had told him. Respondent then told plaintiff to come to his office the next day, which was Saturday, and to come down early, 9 o'clock, as respondent was going away, and he would see appellant. Plaintiff did call at defendant's office the next morning about 9 o'clock, remained there about two minutes, and then defendant came out of his private office and said to plaintiff: 'Come ahead.' Plaintiff and defendant then went down to the street and when they got to Broadway defendant said to plaintiff: 'If you want to assume a partnership in the wrecking of these buildings up here I don't want you to tell anybody I have any connection with this, because my company might not like to go into anything outside of its own business.' And plaintiff replied: 'That will be satisfactory to me; anything you say to me I will keep quiet.' They then walked up to the German-American Bank, located at the corner of Fourth street and Franklin avenue, defendant went into the bank, and plaintiff remained outside. When defendant came out he told plaintiff he got a certified check for $ 5000. They then walked back to defendant's office, at which place defendant asked plaintiff if he had a suit case and when plaintiff told him he had, he asked to borrow it. Appellant told him all right that he would get the suit case. Plaintiff then went out to his home, got the suit case, returned with it to defendant's office about 2 o'clock. He went into defendant's private office and defendant said to him: 'Joe, I want you to sign a receipt now. I am in a hurry to get away; it is just a receipt to show, in case anything happens to me on my trip we will know what become of this $ 5000 certified check.' Plaintiff signed the paper which he supposed was a receipt and went on about his business. In the hurry he never noticed the paper which he signed, supposed it was a receipt, what defendant told him it was. And he did not learn that this paper he signed, and which he supposed to be a receipt, was in the form of a $ 5000 promissory note, until after he had instructed his counsel to bring suit against the Kellermann Contracting Company to recover some money which that company owed him for some excavating work done for what was known as the Dickson street job.

"On Monday morning, September 14, 1908, plaintiff called at defendant's office, which was in the office of the Kellermann Contracting Company, and there met one Wishmeyer, who was in the employ of said company; and Wishmeyer then handed plaintiff an envelop in which was said certified check for $ 5000 and two bids, which were written up by Wishmeyer; and in one of these bids, he Wishmeyer, had inserted the figures $ 4100, and in the other he left the place for the amount to be bid, blank, and told plaintiff if he found he could get the buildings at $ 4100 to use the $ 4100 bid, and if not then fill out the $ 4900 bid, that is, insert the figures $ 4900 in the proposal. Plaintiff went to the office of the Supply Commissioner with said check and said bids, and then inserted the figures $ 4900 in the bid in which the amount was left blank, handed that and said check to Mr. Bakersmith, who was then in the Supply Commissioner's office. Plaintiff then returned to the office of said contracting company, and reported to Wishmeyer what he had done. The next day he was notified that the contract was awarded to him.

"It appears from the testimony that said Supply Commissioner would not apply the said $ 5000 certified check in payment for said buildings, but required that plaintiff put up $ 4900 to pay for the buildings; and also give a bond. Plaintiff reported to Wishmeyer, the person whom defendant had told plaintiff would look after the matter, what said Supply Commissioner required and he told Wishmeyer that he had better try and get in communication with defendant who was then in Colorado. Wishmyer promised plaintiff that he would try and locate defendant; that he, Wishmeyer, had already made arrangements with a Mr. Janis about a bond and for plaintiff to go and see him. Plaintiff did call on Mr. Janis, who asked plaintiff who was in the contract with him, and plaintiff first declined to tell him, saying that he promised not to reveal the name of the person who was in the contract with him, but finally told Janis that it was respondent Lehr. Then the question of getting the $ 4900 to pay for the building came up, and Mr. Janis asked plaintiff where he did his banking business and plaintiff told him at the Merchants-Laclede National Bank. Plaintiff and Mr. Janis then went to said bank and plaintiff was told by the cashier there that that bank would cash a note if plaintiff got an endorser on the note. Plaintiff then went to the office of said Kellermann Contracting Company, and asked Wishmeyer who was there, if he would ask Mr. Kellermann, president of that company, if he would endorse a note for $ 4900. Plaintiff afterwards went into the office of Mr. Kellermann and he endorsed the note, and plaintiff then went to the Merchants-Laclede National Bank, and that bank gave him $ 4900 for the note. Plaintiff then got a certified check for that amount, which he took to the office of said Supply Commissioner. The bond having been filed the work of wrecking said buildings which plaintiff and defendant purchased from said city was begun about the 25th day of September, 1908. Plaintiff and defendant were partners in that work or undertaking.

"Defendant returned from...