Trautman v. Schroeder

• Citation: 93 S.W.2d 303,230 Mo.App. 985
• Parties: WALTER J. TRAUTMAN, RESPONDENT, v. HENRY P. SCHROEDER, APPELLANT
• Decision Date: 07 April 1936
• Court: Missouri Court of Appeals

93 S.W.2d 303

230 Mo.App. 985

WALTER J. TRAUTMAN, RESPONDENT, v. HENRY P. SCHROEDER, APPELLANT

Court of Appeals of Missouri, St. Louis

April 7, 1936

Respondent's motion for rehearing overruled April 28 1936.

Appeal from the Circuit Court of the City of St. Louis.--Hon. Robert W. Hall, Judge.

REVERSED AND REMANDED (with instructions).

Reversed and remanded.

Edward Kooreman and Floristel, Mudd, Blair & Habenicht for appellant.

(1) The verdict was a general verdict for the defendant and was not only a proper verdict, but the only verdict permissible on the pleadings as a verdict for the defendant. R. S. Mo. 1929 sec. 969; Hannibal, etc., Bridge Company v. Bowling, 53 Mo. 311; Schaabs v. Wheel Company, 56 Mo. 173; Cox v. Bright, 65 Mo. 417, l. c. 421; Bird v. Thompson, 96 Mo., l. c. 428. (2) The point that the verdict is defective because not responsive to the pleadings may only be raised by a motion in arrest of judgment. Boudreau v. Myers, 54 S.W.2d (St. L.) 998; Railroad v. Wyatt, 223 Mo. 347, l. c. 357; Nichols v. Stokes, 196 S.W. 1075 (Spr.) (cas. cit.); Midwest, etc., Bank and Trust Co. v. Corn Company, 211 Mo.App. 415. No such motion was filed in the case.

Thompson, Mitchell, Thompson & Young, Richmond C. Coburn and Charles M. Spence for respondent.

(1) The appellate court will not reverse the order and judgment of a trial court granting a new trial if it can be sustained upon any ground of the motion even though not sustainable on the ground specified of record by the trial court. Manthey v. Kellerman Contracting Co., 277 S.W. 927, 311 Mo. 147; Craton v. Huntzinger (Mo.), 187 S.W. 48; Cahill v. Byng (Sp. App.), 30 S.W.2d 768; Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 649; Macklin v. Fogel Construction Co., 326 Mo. 38, 31 S.W.2d 14. (2) The appellate court, in determining whether a new trial was properly granted, must give respondent the benefit of the most favorable inferences arising from the most favorable testimony; it must regard respondent's reasonable testimony as true and appellant's contradicted testimony as false. Alexander v. St. Louis-San Francisco Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023; Zimmer v. Daugherty (St. L. App.), 32 S.W.2d 765; Crocker v. MacCartney (Sp. App.), 24 S.W.2d 649; Smith v. St. Louis-San Francisco Ry. Co. (Mo.), 9 S.W.2d 939. (3) A new trial could and should have been granted and can be sustained on any or all of the following grounds set out in the motion for a new trial: (a) The court erred in refusing to give at the instance of plaintiff the peremptory instruction in favor of plaintiff at the close of defendant's case (Abs. 105). (1) A peremptory instruction for plaintiff is proper when no defense to plaintiff's right to judgment is proved. Sturdivant Bank v. Houck (St. L. App.), 215 S.W. 758; Crawford v. Stayton (K. C. App.), 131 Mo.App. 263, 110 S.W. 665. (2) The execution of the note sued on was conceded and plaintiff's demand and offer to deliver were conceded. (3) Never having tendered payment defendant could not set up as a defense plaintiff's failure to tender performance sooner than he did. Jose v. Aufderheide (K. C. App.), 293 S.W. 476; Sturdivant Bank v. Houck (St. L. App.), 215 S.W. 758. (4) The defense that the sale was an inducement for defendant to retain the company agency was not available because no proof to support it was offered and because such proof, if offered, would have been incompetent under the parol evidence rule. Dexter v. MacDonald, 95 S.W. 359, 196 Mo. 373; J. B. Colt Co. v. Farmer (Sp. App.), 286 S.W. 399; Main Street Bank v. Ennis, 7 S.W.2d 391; Bank of Hollister v. O'Brien (Sp. App.), 220 Mo.App. 1276, 290 S.W. 1009. (5) The defense of fraud was not available because the statements of plaintiff relied on were mere expressions of opinion or at most only "puffing" and because there was no allegation, or evidence offered to show, that plaintiff failed to disclose material facts. Lovelace v. Suter (St. L. App.), 93 Mo.App. 429, 67 S.W. 737; Sawyer v. Horne's Zoological Arena, 195 S.W. 537; Moody v. Baxter (K. C. App.), 152 S.W. 117, 167 Mo.App. 521. (b) The verdict is against the evidence. Authorities cited under (a); Lawson v. Mills, 130 Mo. 170, 31 S.W. 1051; Foley v. Harrison, 233 Mo. 460, 136 S.W. 351. (c) The verdict is against the weight of the evidence. Authorities cited under (a); Gate City National Bank v. Boyer (Sp. App.), 161 Mo.App. 143, 142 S.W. 487; Bohle v. King-Brinsmade Merc. Co. (St. L. App.), 114 Mo.App. 439, 89 S.W. 1036. (d) The court erred in giving the jury all instructions requested by defendant, which instructions were erroneous and misleading. (1) In that such instructions submitted the case on the theory that plaintiff did not tender delivery of that for which the note was given, whereas defendant's answer admitted a tender and the undisputed evidence shows one. Houckin v. Hobbs (K. C. App.), 34 S.W.2d 167; King v. Friedriech (St. L. App.), 43 S.W.2d 843; Babcock v. Rieger, 332 Mo. 528, 58 S.W.2d 722; Cowell v. Employers Indemnity Corp., 326 Mo. 1103, 34 S.W.2d 705. (2) In that never having paid or offered to pay the note, defendant never became entitled to either stock certificates or voting trust certificates. (3) In that such instructions submitted the case on the theory that plaintiff might have been obliged to deliver ordinary certificates of stock, whereas the collateral agreement specified that delivery was to be of voting trust certificates representing the stock. (e) The court erred in permitting counsel for the defendant to make erroneous, misleading and prejudicial remarks and comments to the jury regarding the failure of plaintiff to testify. Atkinson v. United Rys., 286 Mo. 634, 228 S.W. 483; Hankins v. St. Louis-San Francisco Ry. Co. (Sp. App.), 31 S.W.2d 596. (f) The court erred in overruling objections by the plaintiff to incompetent, irrelevant and immaterial evidence offered by defendant. Dexter v. MacDonald, 196 Mo. 373, 95 S.W. 359; J. B. Colt Co. v. Farmer (Sp. App.), 286 S.W. 399; Main Street Bank v. Ennis (K. C. App.), 7 S.W.2d 391; Bank of Hollister v. O'Brien (Sp. App.), 220 Mo.App. 1276, 290 S.W. 1009.

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

--This action, which was commenced in the Circuit Court of the City of St. Louis, on November 11, 1931, is founded on a promissory note, executed by defendant in favor of plaintiff in the sum of $ 2,842.50, on May 27, 1929. The note is payable on demand with interest at the rate of six per cent per annum from date until paid. The note was given for the purchase price of 150 shares of the common capital stock of the General Industrial Alcohol Corporation. Concurrently with the execution of the note another instrument in writing was executed by the parties, and the failure of plaintiff to perform the obligations imposed on him by this instrument is pleaded as a defense.

Prior to the organization of the General Industrial Alcohol Corporation, plaintiff was president and manager of the General Industrial Alcohol Company located at New Orleans. Defendant had the exclusive representation of the General Industrial Alcohol Company for the sale and distribution of its products in St. Louis and the immediate vicinity. He sold the products of the company as a jobber, and also on commission.

When the General Industrial Alcohol Corporation was organized, plaintiff became its president and manager at $ 25,000 a year. The General Industrial Alcohol Corporation was organized through a merger of the General Industrial Alcohol Company with a number of other corporations, including the Greendale Corporation at Lawrenceburg, Indiana, the Bay City Corporation at Bay City, Michigan, the National Industrial Corporation at New Orleans and the American Molasses Corporation at New Orleans.

The General Industrial Alcohol Corporation, upon its organization, issued bonds to the amount of about a million and a half dollars, and an equal amount of common stock. The merger of the various corporations, resulting in the organization of the General Industrial Alcohol Corporation, was effected by a group of bankers in New York. Of the stock issued by the corporation five thousand shares were allotted to plaintiff, at $ 18.95 per share, which was the bankers' price. The stock was at that time quoted on the New York Stock Exchange at $ 32.50 per share.

Plaintiff was elected president of the General Industrial Alcohol Corporation early in 1929. A group of New York bankers organized and owned the Maurvin Corporation. It was a Delaware corporation, and was organized early in 1929. It was from this corporation that plaintiff got his allotment of five thousand shares of the stock of the General Industrial Alcohol Corporation. Plaintiff and other persons who obtained an allotment of the stock at the bankers' price were obligated by contract not to sell the stock before November 15, 1929. This presumably was for the purpose of preventing a depression of the market quotations on the New York Stock Exchange, until distribution of the stock by the New York bankers composing The Maurvin Corporation had been completed.

In addition to the 150 shares of stock sold to defendant by plaintiff out of his allotment of 5,000 shares, plaintiff sold 150 shares to Clarence Morgan of Chicago, 150 shares to E. J. Shannon, of Cincinnati, and 1,000 shares to Joseph Schwarz of New Orleans.

All of the shares of the stock of the General Industrial Alcohol Corporation were placed in a voting trust at the time of the organization of the corporation. This voting trust was never terminated.

The instrument executed by plaintiff and defendant, at the time of the execution of the note sued on, is as follows:

"Walter J. Trautman, hereinafter referred to as the vendor, hereby...