Stewart v. Brinson-Waggoner Grain Co.

• Decision Date: 06 February 1912
• Parties: STEWART et al. v. BRINSON-WAGGONER GRAIN CO.
• Court: Missouri Court of Appeals

143 S.W. 868

STEWART et al. v. BRINSON-WAGGONER GRAIN CO.

St. Louis Court of Appeals. Missouri.

February 6, 1912.

Rehearing Denied February 20, 1912.

1. APPEAL AND ERROR (§ 1010) — REVIEW — TRIAL WITHOUT JURY — WEIGHT OF EVIDENCE.

In an action at law tried without a jury, the weight of the evidence is a question for exclusive determination by the trial court.

2. APPEAL AND ERROR (§ 1010) — REVIEW — FINDINGS — CONCLUSIVENESS.

Findings of fact on a trial without a jury are conclusive on appeal, if supported by substantial evidence.

3. APPEAL AND ERROR (§ 882) — REVIEW — FINDINGS BY COURT — WAIVER.

Though under Rev. St. 1909, § 1972, when a trial court sits as a jury in an action at law, he may be asked to give declarations of law or to make findings of facts with his conclusions of law, but cannot be required to do both, appellants cannot complain of the court's action in giving and refusing declarations of law and in failing to find separately as to the facts, or to separate its finding of facts from its conclusions of law, where the statutory rule is disregarded by both parties, and where, by examining the findings and conclusions and considering them with the declarations of law given or refused, the appellate court is able to determine the theory upon which the case was tried.

4. APPEAL AND ERROR (§ 1071) — REVIEW — DECLARATIONS OF LAW.

Appellant cannot complain because the trial judge who tried the case without a jury failed to write the word "given" or "refused" on the declarations of law submitted, where the judge's ultimate action clearly shows what view he took of the several declarations asked.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by A. C. Stewart and others, trustees, against the Brinson-Waggoner Grain Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Eliot, Chaplin, Blayney & Bedal, for appellants. Thos. B. Harvey and Thos. J. Rowe, for respondent.

REYNOLDS, P. J.

This is an action by appellants, trustees of the Missouri Valley Grain & Export Company, hereafter referred to as the Export Company. The amended petition upon which the case was tried contains six counts, the first for $724.99, the second for $90.63, both of these alleged to have been balances due by defendant to the Export Company in September, 1904, upon a cash grain account and an option account of the company, carried upon the books of respondent, the accounts being closed by these balances being credited to an account at that time standing on the books of respondent company in the name of one S. M. Bird. The third, fourth and fifth counts are to recover $1,500, $1,250 and $1,000, respectively, paid during the month of July, 1904, to respondent company by the Export Company as margins on trades in grain for future delivery, credited at the time on the books of respondent company in the name of Bird. The sixth count is based on checks which represent the amounts mentioned in the third, fourth and fifth counts, but avers that they were given as margins to support a sale of wheat for delivery in July, made by the Export Company with defendant, that is, put up as margins by the Export Company; that on the 30th of July the Export Company delivered to respondent all the wheat called for in that sale, and the margins, aggregating $3,750, became released. Averring that the plaintiffs had demanded of respondent the return of these margins which respondent refused, judgment is prayed on this count for $3,750, with interest.

The answer was a general denial.

The cause was tried by the court without a jury.

Probably the best way of giving an intelligent account of the facts in the case is to incorporate here the finding of facts and conclusions of law made by the learned trial judge, he having been requested by respondent, defendant below, to make them.

"From the testimony in the above case I find that S. M. Bird was the vice-president and sole general manager of the Missouri Valley Grain & Export Company, hereinafter called The Export Company, engaged in the general grain business; and that as such general manager he carried on the business of the Export Company on the floor of the Merchants' Exchange in the city of St. Louis; that all of his dealings in future purchases of grain were in his own name, but were the dealings and contracts of the Export Company; that as vice-president and sole general manager of the Export Company in St. Louis he had authority to do and transact any business of the company that it was authorized to do under its charter; that the Export Company knew that Bird, its general manager, was conducting an account with the defendant company in his own name, but for the benefit of said company.

"Whether the Export Company knew of all the deals which Bird made with the defendant company, is, therefore, it seems to me, a fact not material in this case. It could easily have informed itself. As a matter of fact, however, there seems never to have been held a meeting of any kind of the Board of Directors of the Export Company, and no one ever seems to have interfered with Bird in his complete management and control of the Export Company's business in St. Louis. No question was ever made by any other officer or director of the company as to Bird's transactions. Bird exercised unlimited authority, so far as such authority can be exercised by a general manager and executive officer of a corporation; he seems to have done whatever it pleased him to do, so far as the St. Louis end of the business was concerned. The company, itself, never complained of Bird's conduct or of any of his transactions with the defendant company. The defendant company was at no time advised of any limitation of Bird's authority. The defendant had the right to presume that as the sole general manager of the Export Company's business in St. Louis that his acts were within his authority and that the company knew what its general manager was doing. In fact, under all the circumstances in this case, it is almost impossible to distinguish between Bird as such sole general manager and the Export Company itself. If Bird failed to report his transactions, or if he appropriated money of the company to his own use, the defendant company cannot be held, inasmuch as at no time did the Export Company advise the defendant company of any limitation upon Bird's authority. I know of no law which attaches any limitation to a sole executive officer of a corporation acting within the charter powers of the corporation.

"I am thoroughly satisfied that the company knew that Bird was dealing with the defendant company in futures and options on behalf of the company, and knew that such deals were made in Bird's individual name; and further, that the company knew that the account was so carried in defendant company's books in Bird's name. It is impossible from the evidence in this case, which shows clearly the manner in which all the business was done, to escape the conviction that the Export Company knew what Bird was doing and knew that the account was carried in his name. In fact, as stated above, it is almost impossible to dissociate the Export Company from Bird so far as the St. Louis branch of the business is concerned. Bird was in fact the whole company in St. Louis aside from a legal fiction.

"The comment which counsel makes of such dealings would be more meritorious if the dealings of the corporation were such as could be denominated businesslike, but it does not lie in the mouth of such a large corporation to question such dealings as the sole manager of its business throughout its short and troubled career made. There was no one here to question Bird's actions, and no one ever did question them. The company never did complain, and is not now complaining. The plaintiffs here took by assignment what Bird left, and nothing more. He left nothing. It would be a great hardship, indeed, if, under all the circumstances, the defendant company could be held liable because of Bird's conduct. Defendant company knew (and that was all...