Suhre v. Busch

• Decision Date: 10 October 1938
• Docket Number: 35216
• Citation: 120 S.W.2d 47,343 Mo. 170
• Parties: Lilly Anheuser Suhre v. Adolphus Busch III and August A. Busch, Jr., Executors of the Will of August A. Busch, Appellants
• Court: Missouri Supreme Court

120 S.W.2d 47

343 Mo. 170

Lilly Anheuser Suhre v. Adolphus Busch III and August A. Busch, Jr., Executors of the Will of August A. Busch, Appellants

No. 35216

Supreme Court of Missouri

October 10, 1938

Reported at 343 Mo. 170 at 193.

Original Opinion of October 10, 1938, Reported at 343 Mo. 170.

Hyde C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

On Motion for Rehearing.

Plaintiff's motion for rehearing is mainly a reargument of questions decided and hence does not comply with our Rule 21. Nevertheless, we have reexamined these questions and concluded that the rulings made are correct. However, we deem it advisable to point out that, in addition to the grounds stated in the opinion for dismissing plaintiff's bill, there is still another reason why plaintiff's bill must be dismissed. It is that even if it could be held that tender by plaintiff could be excused, on any ground, plaintiff could not be entitled to specific performance because it appears from her own evidence, as a matter of law, that she never was either ready or able to make performance on April 16, 1931, or at any time between April 16, 1931, and May 16, 1931. Mr. Steinberg testified for plaintiff concerning the dealings he had with her and her husband, as follows:

"I had conversations or negotiations with Mr. Suhre in the spring of 1931, in regard to making a loan to Mrs. Suhre on stock of Anheuser-Busch Company. . . . He said he would like to get about $ 60,000.00 on the deal. 'It will take about $ 50,000.00, I imagine, to clean up the loan; naturally, I haven't the exact figures, and Mrs. Suhre and I need some extra money to clean up some other matters.' So I figured that would be about $ 75.00 per share, and I told him I would make him the loan at $ 75.00 a share on the 812 1/2 shares of stock for two years, at 6 per cent interest; and I said, 'Now, I know this is not your stock, Will. This is your wife's stock, and I am not going to make a deal with you unless it is with the express understanding that your wife approves of it, and so that I may know it, I want your wife to be here and present when we make the deal.' . . . He brought her down next day, on April 15. . . . I told Mr. and Mrs. Suhre that if Mrs. Suhre was willing to sign the stock or endorse it for a loan, I would make the loan to her at $ 75.00 per share for two years time, at 6 per cent interest. . . . I did not commit myself as to my being willing over any definite period of time to make the loan. . . . The collateral I had agreed to take for my loan of the money, were the same shares that they sold Mr. August A. Busch, covered by those two option contracts; I knew nothing about option contracts; nor that there were two or one; I only knew it was 812 1/2 shares. . . . I don't recall their having told me anything excepting that they had 812 1/2 shares of Anheuser-Busch stock with Mr. Busch and they owed him approximately $ 50,000.00, and they wanted to get a little more than that so they could have some money to square up other matters they wished to, and that the whole thing figured about $ 60,000.00, so I figured it at $ 75.00 a share. They did tell me that Mr. Busch had refused to extend the time further, so they had to have the money."

Mr. Steinberg further testified that he heard nothing more from them until he met Mr. Suhre in the lobby of an office building and that he then had the following conversation with him:

"I said, 'Say, Will, what kind of business is this? You come up and arrange to make a loan with me, and I tell you I will do it, and I haven't heard anything about it for ten days. What is the delay? What is the matter?' He said that he should have been in to see me but that he heard Mr. Busch had been sick and he had had delay in consummating the taking up of the loan from the Busch end of the matter, on account of Mr. Busch not being there to attend to it."

Plaintiff testified as to this arrangement thus:

"Q. Was there anything said as to how long he would continue to be willing to make you that loan? . . . Was there any discussion as to how long it would be before you would give him an answer on that? A. I said I would probably let him know within a few days. . . . Q. Why didn't you accept the loan from Mr. Steinberg on the occasion when he agreed to loan it to you, when you and Mr. Suhre first went down there and when you told him that you would let him know in a few days? A. Well, because when we went...