Shinkle v. Vickery

• Decision Date: 30 March 1900
• Citation: Shinkle v. Vickery, 55 S.W. 456, 156 Mo. 1 (Mo. 1900)
• Parties: SHINKLE, Appellant, v. VICKERY
• Court: Missouri Supreme Court

55 S.W. 456

156 Mo. 1

SHINKLE, Appellant, v. VICKERY

Supreme Court of Missouri, First Division

March 30, 1900

Appeal from St. Louis City Circuit Court.-- Hon. Horatio D. Wood Judge.

Affirmed.

George W. Taussig, John E. Bishop and Hugh D. McCorkle for appellant.

(1) Under the pleadings and evidence it was error to dismiss the bill.The utmost that defendant was entitled to under the answer and evidence was a decree, adding to the $ 10,000 debt any damages suffered from Gibson's breach of contract before plaintiff could have the stock certificate transferred to him.(2) This being an action for recovery of specific personal property, in its nature an equitable replevin, the only question that could be tried, in the absence of a money demand by plaintiff, was the right to the possession of the stock certificate, that is, whether or not the pledge to Vickery was extinguished.Workman v. Warder,28 Mo.App. 1;Sherwood v. Neal,41 Mo.App. 416.(3) The contract out of which defendant's counter-claim arose, if at all, was not connected with the "subject of plaintiff's action," nor did it arise out of the contract or transaction out of which plaintiff's action arose.Hence, it was not a proper subject of counter-claim as against plaintiff, an assignee without notice.Gallup v Albany Ry. Co.,7 Lans. 471;Edgerton v. Page,20 N.Y. 281.(4) The claim, under the land contract, was not an existing equity at the time of the assignment of the equity in the stock by Gibson to plaintiff, and hence can not affect plaintiff, an assignee without notice and for value.Smith v. Ashby,20 Mo. 354;Paston v Bussmeyer,28 Mo. 330;McNeil v. Hill, 1 Woolworth 96;Bobb v. Taylor,56 Mo. 311.(5) The title of Shinkle, a bona fide purchaser for value, of a non-negotiable chose in action, purchased from Gibson, or Engel, having an apparent title, can not be contested by Vickery, who has, himself conferred such apparent title upon the vendor, Shinkle, the buyer having no notice of equities.As to such a purchaser, or assignee, the vendor (Vickery), is estopped to interpose a claim of equities, or secret lien, existing in his favor.Fugate v. Hansford, 3 Litt.(Ky.) 262;Kemp v. McPherson, 7 Har. & J. 320;Cochran v. Stewart,21 Minn. 435;Clarke v. Roberts,25 Hun. 86; s. c. 90 N.Y. 652;Combes v. Chandler,33 Oh. St. 178;Moore v. Holcombe, 3 Leigh, 597;Hall v. Parnell,2 Md. Ch. 137;McNeil v. Hill, 1 Woolworth, 96;Riley v. Vaughn,116 Mo. 169;Taylor Com. Co. v. Bell,62 Ark. 26;Mernich v. Shaffer,34 N.E. 987;Porter v. Gable,88 Ia. 565;Swartz v. McClelland,31 Neb. 646;Humes v. Scruggs,94 U.S. 327;State v. Frame,112 Mo. 502;Pullian v. Burlingame,81 Mo. 111;Guffey v. O'Reilly,88 Mo. 418;Lee v. Turner,89 Mo. 489;Boles v. Bennington,136 Mo. 522;Sherwood v. Neal,41 Mo.App. 416;Camp v. Railroad,62 Mo.App. 85;Longworth v. Aslin,106 Mo, 155;Taylor v. Elliot,32 Mo. 172;Swallow v. Duncan,18 Mo.App. 622;Central Bank v. Garrison,2 Mo.App. 58.(6) Shinkle, in his contract with Gibson, having agreed to pay the debt of $ 10,000 due from Gibson to Vickery, became liable directly to Vickery, and it is immaterial that Vickery was not a party to the agreement between Gibson and Shinkle.Fitzgerald v. Barker,70 Mo. 685; s. c. 85 Mo. 13;State v. Railroad,125 Mo. 596;Heim v. Vogel,69 Mo. 529;Wayman v. Jones,58 Mo.App. 313;Nelson v. Brown,140 Mo. 580;Commercial Bank v. Wood,56 Mo.App. 214;Parks v. Clark,2 N.Y. 329;Dingeldein v. Railroad,37 N.Y. 575;Winn v. Lippencott,125 Mo. 545.(7) Vickery has no cause of action, even against Gibson, based upon the land contract.His tender in July, 1894, was illegal and insufficient.He demanded $ 33,920, in place of $ 32,000.He made no valid legal tender of the deed to Gibson.He failed to make a valid tender of the certificate of stock.Mellon v. Webster, 5 Mo.App. 449.

T. K. Skinker and C. R. Skinker for respondents.

(1) Shinkle is not entitled to maintain an action for this stock.Gibson alone, if anyone, can sue.(2) Under the Findlay lot contract, plaintiff's rights in respect to this stock, if any he had, ceased absolutely when Vickery refused to transfer and deliver it; and plaintiff has, now, no such interest in it as will enable him to maintain this suit.This contract gave plaintiff the right to have the stock if Vickery would deliver it to him, but it imposed on defendant no duty and gave him no right to sue for the stock.Reed v. Telegraph Co.,135 Mo. 675;Porter v. Brooks,35 Cal. 203;Hardeman Co. v. Foard Co.,47 S.W. 33.(3)The plaintiff can not maintain this suit and is not entitled to equitable relief on the ground that he will sustain irreparable injury to his property or that he has no adequate remedy at law.Spitz v. Kerfoot,42 Mo.App. 85;Damschroeder v. Thias,51 Mo. 104;Weigel v. Walsh,45 Mo. 560;Burgess v. Kattleman,41 Mo. 480;James v. Dickson,20 Mo. 79.(4)Plaintiff can not maintain this suit for the further reason that neither in his petition nor by his evidence has he made out a case for specific performance.His remedy, if he is entitled to any, is by an action for damages for non-delivery of the stock.Waterman, Spec. Perf., sec. 19;22 Am. L. Reg. 500;2 Beach on Contracts, sec. 955;1 Spelling, Priv. Corp., sec. 500;Ferguson v. Paschall,11 Mo. 270;Ross v. Railroad, Woolworth, 26;Noyes v. Marsh,123 Mass. 286;Jones v. Newhall,115 Mass, 244;Eckstein v. Downing,64 N.H. 248;Foll's Appeal, 91 Pa. St. 434;De La Cuesta v. Ins. Co.,136 Pa. St. 78;Edelman v. Latshaw,159 Pa. St. 644;Bumgardner v. Leavitt,35 W.Va. 194;Trust Co. v. Markell,61 Minn. 271;Avery v. Ryan,74 Wis. 591.(5)Plaintiff can not maintain this suit either on the ground that his interest in the stock is equitable, and is therefore a proper subject of equitable cognizance.Story on Bailments, sec. 350;Edwards on Bailments, sec. 316;Maryland Ins. Co. v. Dalrymple,25 Md. 242.Or on the ground that the proceeding is one to redeem a pledge.Edwards on Bailments, secs. 230, 313, 314.(6)Plaintiff is a mere volunteer, having paid nothing for the stock.His conditional assumption to pay Gibson's debt to Vickery does not make him a purchaser for value.Arnholt v. Hartwig,73 Mo. 485;Dougherty v. Cooper,77 Mo. 528;Young v. Kellar,94 Mo. 581;Stone v. Welling,14 Mich. 525;Matson v. Melchor,42 Mich. 477.As a volunteer he is entitled to no relief that would not be adjudged to Gibson, and is subject to every defense that could be made against Gibson.Barnes v. McMullins,78 Mo. 260;Wolff v. Matthews,39 Mo.App. 376;Skinker v. Smith,48 Mo.App. 91;Utica Ins. Co. v. Power, 3 Paige, 367;Lillibridge v. Allen, 100 Ia. 582.

OPINION

MARSHALL, J.

This is a bill in equity to compel the specific performance of a contract with respect to shares of stock in a private corporation.

Prior to July 16th, 1894, Russell B. Gibson and Albert H. Engel(in the undivided proportions of three-fourths and one-fourth, respectively) owned one hundred and twenty-seven and ninety-seven one hundredths acres of land in St. Louis county, and the defendant Vickery owned four hundred and seventy shares of the capital stock of the Hemingray Glass Company, of Covington, Ky., of the par value of one hundred dollars per share.Gibson and Vickery proposed making an exchange of the respective real and personal property.Engel had acquired the interest in the land held by him from Gibson for thirty-seven hundred dollars upon an agreement with Gibson that if Engel desired it, he, Gibson, would take it back within six months at forty-two hundred dollars.To enable Gibson to exchange the land with Vickery for his stock Engel reconveyed the one-fourth interest in the land held by him.Thereupon Gibson and Vickery agreed to make the exchange, Gibson valuing his land at $ 32,000.There was, however, a deed of trust on the land for ten thousand dollars, which had to be paid off in order that Gibson might give Vickery a clear title.Gibson was unable to raise the money to pay off this deed of trust, so at last it was arranged that Vickery should lend Gibson the ten thousand dollars, and take his collateral note therefor payable at six months, with six per cent interest from date, with the four hundred and seventy shares of stock pledged thereby to secure the payment of the note.This was done, and the exchange perfected, the deed of trust paid off and the note and collateral executed.But it was also agreed that, "if in one year from this date the said Vickery shall be dissatisfied with his said purchase of land, the said Gibson hereby binds himself to purchase said farm, either for himself or for another, and to pay therefor, or cause to be paid for same, the price of $ 250 per acre, or the sum of $ 32,000," and to secure this agreement Gibson agreed to convey to Vickery (the deed to be held in escrow by Samuel Cupples and Company, but in fact it was delivered to Vickery) three hundred and twenty acres of land in Christian county, valued at $ 7,500 (over a mortgage for $ 2,500 then on the land).It was further agreed that Vickery was, "to have the right, at any time during the year ending July 16th, 1895, to notify Gibson in writing that he is satisfied with the land, and in that event or in the event Vickery elected to rescind the exchange Vickery obligated himself to return to Gibson the deed to the Christian county land."During the year Gibson was to have the right to sell the land exchanged at not less than $ 250 an acre, by paying Vickery the $ 32,000 with six per cent interest from the date of the exchange.Vickery never at any time indorsed or transferred the certificate of stock.At the time Gibson executed his collateral note to Vickery, the latter gave him the following document:

"St Louis,...