Soper v. J.G. Strean Inv. Co.
| Decision Date | 11 June 1923 |
| Docket Number | No. 14769.,14769. |
| Citation | 253 S.W. 796 |
| Parties | SOPER at al. v. J. G. STREAN INV. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Z'ackson County; James H. Austin, Judge.
"Not to be officially published."
Action by L. J. Soper and another, partners, doing business as Soper-Parmer & Co., against the J. G. Strean Investment Company. Judgment for defendant, and plaintiffs appeal. Affirmed.
Hardin B. Manard, of Kansas City, for appellants.
H. H. McOluer and Omar E. Robinson, both of Kansas City, for respondent.
This action, originating In a justice court, is to recover damages for breach of contract. `Upon appeal to the circuit court it was there tried before the court without a jury, and judgment was rendered for defendant. The plaintiffs appealed.
Plaintiffs are partners and defendant is a corporation. The parties to the suit aro brokers in Kansas City. The case was tried in the circuit court on January 3, 1922, upon, a petition which had theretofore been amended without objection, and which, as amended, " alleged that on July 3, 1920, plaintiffs "purchased of defendant and defendant sold and. agreed to deliver to them within a reasonable time thereafter which would be, to wit, on the following Tuesday, July 6, 1920, in said city, at their (plaintiffs') office, 5,000 shares of Walls Frogless Switch & Manufacturing Company's common stock at and for the price of 30¼ cents per share," or a total sum of $1,512.50, which plaintiffs agreed to pay upon delivery of said stock to them; that before and at the time of making said purchase plaintiffs "advised defendant they were buying said stock for delivery to a purchaser to whom they had sold it at a profit."
The petition further alleged that "said sale of said stock to them was evidenced by a written memorandum executed and delivered to them by said defendant, a copy of which is attached hereto and marked Exhibit A"; that thereafter, on the 6th of July. 1920, defendant notified plaintiffs it would not deliver said stock, and has since failed and refused to do so; that plaintiffs had a purchaser of said stock at the price of 37½ cents per share, or a total sum of $1,875, which purchaser was ready, able, and willing to pay for same upon delivery of said stock to him, and plaintiffs agreed to deliver same to him on July 6, 1920, and demand upon them was made by said purchaser and payment offered, but plaintiffs were unable to deliver said stock for the reason aforesaid, to their damage in the sum of $362.50.
Exhibit A, attached to the petition, reads as follows:
At the conclusion of the evidence the plaintiffs asked leave to amend the petition in two particulars, the first of which seems to have been merely a repetition of an amendment formerly made and already in the amended petition hereinabove referred to, and the second of which was to insert after the words "Exhibit A" the following:
"Which omits any date of delivery of said stock, but which, in the absence thereof, means within a reasonable time thereafter, which. would be, to wit, on July 6, 1920."
Objection being made on the ground that there was no evidence to base the amendment upon, that it was contrary to the evidence, and alleges a contract different from the one pleaded, the plaintiffs asked leave to reopen the case so as to permit evidence to show that July 6, 1920, was a reasonable time. The court, over the objections of defendant, permitted the amendment, and continued the case to January 14, 1922, at which time the court reopened the case and a stipulation was filed agreeing that, where a broker had possession and control of 5,000 shares of Walls Frogless Switch & Manufacturing Company and sold same to another broker in the same city, such stock, in the ordinary course of business, should have been delivered by the seller to the purchaser immediately, or at least on the day such sale was made and possession and control of such stock was had by the seller. The court thereupon took the case under advisement until the May term, 1922, when judgment for defendant was rendered, and this appeal was taken.
It is conceded that on Saturday, July 3, 1920, in a communication between plaintiffs and defendant over the telephone, the defendant sold and agreed" to deliver to plaintiffs 5,000 shares of common stock in the Walls Frogless Switch & Manufacturing Company at 30¼ cents per share, aggregating $1,512.50, and plaintiffs bought same and agreed to pay said price. It is also conceded that on the same day, to wit, July 3, 1920, plaintiffs mailed to defendant a written confirmation addressed to defendant which stated, "We confirm the purchase from you to-day of the following securities," and then followed a statement of the quantity of the stock named, the price and the amount of sale, together with signature of plaintiffs. It is further conceded that on the same day, July 3, 1920, defendant mailed to plaintiffs the instrument hereinbefcre set out and designated as Exhibit A.
The evidence offered in plaintiffs' behalf is that plaintiffs had sold 5,000 shares of said stock to a customer at 37½ cents a share, or a total price of $1,875, the stock to be delivered on Tuesday, July 6, 1920, and that, at and before plaintiffs' purchase of defendant over the telephone, plaintiffs informed defendant they had the stock sold to their customer at an advanced price, and that delivery had to be made to such customer not later than July 6, 1920, and that thereupon defendant agreed to make delivery on July 6th.
When"plaintiffs offered evidence as...
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