Stripling v. Maguire

• Decision Date: 13 December 1904
• Parties: STRIPLING v. MAGUIRE.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

84 S.W. 164

108 Mo. App. 594

STRIPLING v. MAGUIRE.^*

St. Louis Court of Appeals. Missouri.

December 13, 1904.

ASSIGNMENTS — PRESENTATION OF CLAIM — DISALLOWANCE — APPEAL — ASSIGNMENT OF CAUSE TO CIRCUIT COURT — TRANSFER — STATUTES — CORPORATIONS — AUTHORITY OF PRESIDENT — QUESTION FOR JURY — AGENCY.

1. Any error in transferring a cause from one division of the circuit court of the city of St. Louis to another was a mere irregularity, not fatal to the jurisdiction.

2. Any error in transferring a cause from one division of the circuit court of the city of St. Louis to another is not subject to review unless preserved by a proper bill of exceptions.

3. Rev. St. 1899, vol. 2, p. 2535, art. 17, § 12, in relation to the circuit court of the city of St. Louis, provides that such court may distribute the business thereof among the several judges as the majority of them may deem expedient. After the disallowance of a claim presented to a statutory assignee, claimant appealed to the circuit court, and the appeal was assigned to the division in which the assignment proceedings were pending. Subsequently two additional divisions of the circuit court of the city of St. Louis were established, and, by order of the court in general term, the cause was transferred to another division. Held, that such procedure was directly authorized by the statute.

4. Where the question was whether one of the makers of a note given to a corporation had been released by an agreement between him and the president of the corporation to release the maker if he would remain in the employment of the corporation, an instruction, if the president released the maker, to find in his favor, was erroneous, as assuming that the president had power to make the release.

5. The Court of Appeals cannot weigh the evidence on appeal.

6. Where a broker transmitted all orders for sales and purchases given him to a corporation, he receiving a portion of the commission, the broker was not deprived of any right of recovery on such transactions as against the corporation because he was in truth the agent of both parties, his attitude as a broker for his customers and as correspondent of the corporation being known and recognized by both.

7. Where a broker forwarded all buying and selling orders to a corporation, he receiving a portion of the commissions charged, and as between the broker and his customers the dealings were in the broker's own name, and as between him and the corporation in his own name, in an action by the broker against the corporation to recover on transactions, the customers of the broker were not necessary parties.

Appeal from St. Louis Circuit Court; Jas. R. Kinealy, Judge.

Proceedings by W. D. Stripling for the allowance of a claim in his favor by Charles J. Maguire, assignee of the Southern Stock & Grain Company. From a judgment in favor of the claimant reversing a disallowance by the assignee, the latter appeals. Reversed.

W. L. Mason, for appellant. R. P. & C. B. Williams, for respondent.

REYBURN, J.

Respondent tendered for allowance to the appellant, as statutory assignee of the Southern Stock & Grain Company, a claim for balance of $4,018.44, which was disallowed by the assignee, who also rejected a set-off or counterclaim on behalf of his assignor, and the claimant's appeal to the circuit was assigned by the clerk of the court to Division No. 5, in which the assignment proceedings also chanced to have been assigned and were pending. Subsequently two additional divisions of the circuit court of the city of St. Louis were established by the Legislature, and, by order of the court convened in general term, and embracing a majority of the judges, and without knowledge of either party, this cause was transferred to court No. 10, in which court the trial resulted in a verdict of a jury in plaintiff's favor for a substantial portion, but not all, of his claim, and for him also upon defendant's counterclaims.

Respondent, a broker at Corinth, Miss., was engaged in buying and selling stocks, grain, cotton, and other commodities for local customers. The Southern Stock & Grain Company was a corporation in similar business in the city of St. Louis, and a wire, for which respondent paid rental, was conducted from its office into respondent's office. By this means respondent promptly received market reports and quotations of prices, and orders obtained by him for purchases or sales were transmitted to the corporation at St. Louis, pursuant to an arrangement between them by which the corporation was thus to receive and execute such orders, respondent being paid a stipulated portion of the commissions charged on such transactions. The transactions and accounts of this corporation and respondent were personal between them, without knowledge or information on part of the stock corporation, who were the customers and principals of respondent, all orders and transactions being in the name of respondent alone, who in turn dealt in his own name and kept his account individually with his customers, who were likewise ignorant of the stock corporation. Such customers made deposits of cash with respondent in connection with their transactions, and he became individually responsible to them and their debtor for such sums; in turn, he remitted amounts to the corporation in...