Shockley v. Fischer

CourtCourt of Appeal of Missouri (US)
Writing for the CourtELLISON
Citation21 Mo.App. 551
PartiesA. J. SHOCKLEY, ASSIGNEE, ETC., Respondent, v. SOPHIA FISCHER, ADMINISTRATRIX, ETC., Appellant.
Decision Date19 April 1886

21 Mo.App. 551

A. J. SHOCKLEY, ASSIGNEE, ETC., Respondent,
v.
SOPHIA FISCHER, ADMINISTRATRIX, ETC., Appellant.

Kansas City Court of Appeals, Missouri.

Apr. 19, 1886.


APPEAL from Cole Circuit Court, HON. NOAH M. GIVAN, Judge.

Affirmed less the amount of interest conceded by the remittitur.

[21 Mo.App. 552]

The case is stated in the opinion.

J. C. FISHER and EDWARDS & DAVISON, for the appellant.

I. The verdict is unjust and not justified upon the merits and law of the case. An action of this kind is founded upon contract. The contract, in this instance, should be the subscription list, but it is not given in evidence, nor is it accounted for as lost, or a certified copy introduced in its stead. 1 Wag. Stat., sect. 2, p. 333.

II. The demurrer to the evidence should have been sustained. The only evidence was the minutes of the board of directors, and evidence that Fischer attended the meetings of the board and knew of the entries, and understood, and it was always stated, that he owed on his subscription. And the evidence shows nothing beyond except what is contained in that record. This evidence might show that he was a stockholder, but not the amount of his stock. Erskine v. Loewenstein, 82 Mo. 301. Nor does the “account of stock” in said book, aid the plaintiff, as it was shown to be false in an important particular, and is likely to be false in a less important one.Falsus in uno falsus in omnibus.

III. The cases cites in Griswold v. Seligman (72 Mo. 111), are all based on suits against persons who were not charged as original subscribers, as in the case at bar. After a corporation has been organized, ownership must be established by the conduct of the parties. But this was not shown here. In the case of an original subscriber “a contract of subscription must be in writing.” 29 Pa. St. 149; 32 Pa. St. 340.

IV. There is nothing to show that plaintiff has any authority to sue in this behalf. The assignment was made to White and Shockley, and White qualified, and there is nothing showing that he ever refused to act, except the bare charge in the petition. The evidence failed to show a refusal to act, and the demurrer to the

[21 Mo.App. 553]

evidence should have been given. Shockley v. Fischer, 75 Mo. 498; sects. 381-385, Rev. Stat. White, then, having qualified could only be removed in the manner pointed out by the statute. Hatcher v. Winters, 71 Mo. 30.

V. The evidence is wholly insufficient to support a judgment. No one pretends that the entries in the book were made by one authorized to make them.

VI. There is no evidence that defendant is administratrix.

VII. The petition does not ask for interest. Ashley v. Shaw, 82 Mo. 76.

VIII. One stockholder was released. This released the other stockholders. Grant Cases,36 Pa. St. 77; Same v. Stewart,41 Pa. St. 54.

SMITH & KRAUTHOFF, for the respondent.

I. Fischer permitted his name to go on the books as a stockholder and to stand as such with his knowledge; he acted as one of the members of the company and exercised the privileges of a stockholder; served as a director, and paid calls. This made the entry on the books binding on him, even if originally unauthorized and made without his knowledge. Thomp. Liab. Stockholders, sects. 161-170; Griswold v. Seligman, 72 Mo. 110; Erskine v. Loewenstein, 82 Mo. 301. The proof showed further that Fischer was a director and president of the company during its entire existence, and as such was present at every meeting of the directors; that the book was before the board at all the meetings, and the stock subscription the subject of discussion; and it was always stated and understood that Fischer was one of the delinquents. So the entries confirm these things.

II. The book was evidence against Fischer, as against whom it was in the nature of a public record, and he was chargeable with knowledge of its contents. 1 Greenl. Evid. (14 Ed.) sect. 493; Angell & Ames on Corp. (11 Ed.) sect. 681; Railroad v. Eastman, 34 N.

[21 Mo.App. 554]

H. 24. The book was identified as the stock book of the corporation; presumptively he was the owner of the shares there stated. The burden was upon defendant to overcome this presumption. Turnbull v. Payson, 95 U. S. 418; Railroad v. Appelgate, 21 W. Va. 172; Ins. Co. v. Holmes, 68 Mo. 601.

III. There is no defect of parties. The petition is not demurrable, so that unless the objection was properly raised by answer it is waived. Shockley v. Fischer, 75 Mo. 498; Dunn v. Railroad, 68 Mo. 268. Such a defence is dilatory. The answer must plead it specially. Bliss on Code Pleading, sect. 416; 1 Chitt. Pl. (16 Am. Ed.) 462; Pom. on Rem. (2 Ed.) sect. 207.

IV. After the reversal of the former judgment in this case by the supreme court, defendant appeared as administratrix, answered and defended the case as such. It will be presumed that the cause was properly revived. Defendant is estopped.

V....

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11 practice notes
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1904
    ...Baisley v. Baisley, 113 Mo. 550, loc. cit., 21 S. W. 29, 35 Am. St. Rep. 726; McClure v. Paducah, 90 Mo. App. 574; Shockley v. Fischer, 21 Mo. App. 551; Kaufman v. Schneider, 35 Ill. App. (3) The defendant, being a domestic corporation which has leased its road to a foreign corporation, rem......
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...651; 61 Mo.App. 440; Goggan v. Evans, 12 Tex. Civ. App. 256; Adams Exp. Co. v. Milton, 74 Ky. (11 Bush.), 49; Shockley v. Fischer, 21 Mo.App. 551; Denise v. Swett, 68 Hun, 188.) Second, interest is not generally recoverable upon unliquidated demands. (22 Cyc., 512, and note.) There is an ex......
  • City of Rawlins v. Murphy, 642
    • United States
    • United States State Supreme Court of Wyoming
    • May 9, 1911
    ...v. Morton, 1 Mo.App. 651; 61 Mo.App. 440; Goggan v. Evans (Tex.), 33 S.W. 891; Express Co. v. Milton, 74 Ky. 49; Shockley v. Fischer, 21 Mo.App. 551; Denise v. Sweet, 68 Hun 188.) Interest is not recoverable upon an unliquidated demand. (22 Cyc. 512 and cases cited.) We are aware that there......
  • Ireland v. Shukert, No. 20221.
    • United States
    • Court of Appeal of Missouri (US)
    • March 1, 1943
    ...requirement that the acceptance "must be communicated to the other party without unreasonable delay". [Shockley v. Fischer, 21 Mo. App. 551.] While the letter states, in effect, that the writer had attempted to collect the two notes "sometime ago" when that time was is n......
  • Request a trial to view additional results
11 cases
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1904
    ...Baisley v. Baisley, 113 Mo. 550, loc. cit., 21 S. W. 29, 35 Am. St. Rep. 726; McClure v. Paducah, 90 Mo. App. 574; Shockley v. Fischer, 21 Mo. App. 551; Kaufman v. Schneider, 35 Ill. App. (3) The defendant, being a domestic corporation which has leased its road to a foreign corporation, rem......
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...651; 61 Mo.App. 440; Goggan v. Evans, 12 Tex. Civ. App. 256; Adams Exp. Co. v. Milton, 74 Ky. (11 Bush.), 49; Shockley v. Fischer, 21 Mo.App. 551; Denise v. Swett, 68 Hun, 188.) Second, interest is not generally recoverable upon unliquidated demands. (22 Cyc., 512, and note.) There is an ex......
  • City of Rawlins v. Murphy, 642
    • United States
    • United States State Supreme Court of Wyoming
    • May 9, 1911
    ...v. Morton, 1 Mo.App. 651; 61 Mo.App. 440; Goggan v. Evans (Tex.), 33 S.W. 891; Express Co. v. Milton, 74 Ky. 49; Shockley v. Fischer, 21 Mo.App. 551; Denise v. Sweet, 68 Hun 188.) Interest is not recoverable upon an unliquidated demand. (22 Cyc. 512 and cases cited.) We are aware that there......
  • Ireland v. Shukert, No. 20221.
    • United States
    • Court of Appeal of Missouri (US)
    • March 1, 1943
    ...with the requirement that the acceptance "must be communicated to the other party without unreasonable delay". [Shockley v. Fischer, 21 Mo. App. 551.] While the letter states, in effect, that the writer had attempted to collect the two notes "sometime ago" when that time was is not The judg......
  • Request a trial to view additional results

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