Wann v. Scullin

• Decision Date: 20 June 1911
• Citation: 139 S.W. 425,235 Mo. 629
• Parties: WANN v. SCULLIN et al.
• Court: Missouri Supreme Court

139 S.W. 425

235 Mo. 629

WANN v. SCULLIN et al.

Supreme Court of Missouri. Division No. 2.

June 20, 1911.

Rehearing Denied July 1, 1911.

1. PRINCIPAL AND AGENT (§ 171) — UNAUTHORIZED ACTS OF AGENT — RATIFICATION.

By retaining a check given in payment of corporate stock, after being informed of the facts, plaintiff ratified her agent's act in delivering the stock, even if he previously misrepresented and withheld facts from her.

2. FRAUD (§ 58) — EVIDENCE — RELIANCE ON REPRESENTATIONS.

In an action against an agent who negotiated a sale of plaintiff's corporate stock for

withholding information as to the agent's personal interest and as to the probable ultimate purchaser, her testimony that she was induced to make the sale by the agent's failure to make such disclosure is without weight; it appearing that subsequent unexpected rise in the price of the stock is the only ground of her dissatisfaction.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Action by Carrie V. C. Wann against John Scullin and others. From an order granting a new trial, plaintiff appeals. Affirmed.

This cause was begun in the circuit court of the city of St. Louis May 15, 1902. There was a trial at the March term, 1904, on the second amended petition, resulting in a verdict for plaintiff for $50,000. Defendant's motion for a new trial was sustained, and plaintiff appealed. The action of the trial court in granting a new trial was sustained by this court in an opinion reported in 210 Mo. 429, 109 S. W. 688. The case was retried on June 2 and 3, 1909. The trial court sustained a demurrer to the evidence, and entered its verdict for defendants, and the plaintiff, after motion for new trial overruled, perfected her appeal to this court. It would be vain to try to improve upon the exhaustive statement of the facts in the case made by Judge Gantt, and his statement will be used as the basis of the statement for the present purposes, and only such additions will be made thereto as are required to show the difference in the facts as developed at the last trial.

On May 27, 1908, a third amended petition was filed. This petition differs from that on the former trial in three points: First, it omits a number of allegations as to conspiracy and confidential relations which were in the second amended petition, and which counsel do not consider important; second, it alleges that had plaintiff known of Scullin's interest in the Rock Island Company or the Mercantile Trust Company, and the agency of the latter for the Rock Island Company, she would not have sent her stock to Scullin; third, it states the legal effect of the telegram of April 24, 1902, from Scullin to plaintiff, and of the telegram of April 25, 1902, from her to him, according to their legal effect as the pleader interpreted them, instead of setting them out in hæc verba as in the former petition. The last trial occurred before the court sitting as a jury; and, by consent of counsel, all evidence given at the previous trial went in as though then and there adduced by the respective parties with the same objections and exceptions. In other words, the former bill of exceptions was made a part of the record on the last trial to the same extent as if the proceedings therein contained had occurred at the last trial.

The appellant claims that new evidence was introduced at the last trial which should have the effect of changing the result; and it is deemed proper to state the appellant's claims in that respect, and at the same time call attention to the record on the former appeal, so as to understand what if any effect the new evidence should have on the questions involved.

(A) Appellant claims that the contract between the Rock Island Company and the Trust Company by which the Trust Company undertook the purchase of the Wiggins Ferry stock for the Rock Island Company is new evidence. But an examination of the statement on former appeal (210 Mo., loc. cit. 454, 109 S. W. 688) shows that this court fully considered that contract.

(B) Likewise the Mercantile Trust Company's contract of purchase of Wiggins Ferry Company stock made with various stockholders was before this court on the former hearing (210 Mo. loc. cit. 454, 109 S. W. 688).

Appellant claims that there was new evidence tending to show that the Mercantile Trust Company failed to acquire a majority of the Wiggins Ferry stock. On the former appeal, the petition alleged such failure, and while the answer contained a denial of all the facts not admitted, it did not allege that the Trust Company obtained a majority of the stock, and plaintiff testified (210 Mo., loc. cit. 458, 109 S. W. 688) that she knew that the Trust Company did not have a majority of the stock, and that everybody was talking about it. It will thus be seen that while there may be more evidence on that point in the present record than on the former trial, yet the question now, as then, is not as to the amount of evidence on that point, but whether any amount of evidence on that point affects the cause.

(C) Plaintiff offered in evidence contract of sale by Joseph G. Holliday to James Campbell at $750 per share of 25 shares theretofore signed by Holliday at $500 per share, the sale being upon indemnity against claim of Mercantile Trust Company and expressly concurred in by Mercantile Trust Company. The contract was excluded by the court, and plaintiff excepted.

(D) Plaintiff offered to prove by H. W. Cox the value of the real estate and improvements of the Wiggins Ferry Company in St. Louis and East St. Louis in April, 1902, to be $7,185,316, which was excluded, and exceptions taken.

(E) The like offer was made as to the real estate in St. Louis by C. C. Crone and was excluded and exceptions taken.

(F) Plaintiff offered to prove by Alonzo C. Church that the net earnings of the Wiggins Ferry Company for five years preceding April 24, 1902, were approximately each year $253,000 and over, which was excluded and exceptions taken, and Church testified that Scullin told him on April 24, 1902, that while he could not tell him the name of the proposed purchaser of the Wiggins Ferry Company, the effect of the sale to the purchaser would be to revolutionize the traffic across the river at St. Louis, that it was a large system — a large railroad system.

(G) Breckenridge Jones testified that he bought the Wiggins Ferry Company stock for some of the railroads which were a part of the proprietary lines of the Terminal Association, beginning April 26, 1902, and up to May 12, 1902, in all, eight different purchases, amounting to 332½ shares at from $1,000 to $1,500 per share, and that the Mississippi Valley Trust Company bought approximately 5,800 shares, which was more than a majority.

(H) Mrs. Wann testified that when she sent her stock to Scullin she did not know that the Rock Island Company was the prospective purchaser, and did not know what had taken place between Scullin and the Rock Island Company, and that she would not have sent the stock if she had known that Scullin had an agreement with the Rock Island to secure a majority or all of the stock for that company at $500 per share, or if she had known that he was interested in these other affairs, and she testified that the absence of an agreement on the part of Scullin with the Rock Island was a material inducement to her to send her stock to him, and that if she had known of such an agreement she would not have sent the stock to Scullin.

John A. Gilliam and Luther Ely Smith, for appellant. Joseph Zumbalen and Joseph S. Laurie, for respondents.

ROY, C. (after stating the facts as above).

The plaintiff makes three distinct charges against defendant Scullin, which will be taken up and discussed not in their chronological order, but in the order most conducive to a clear and easy understanding of the case.

I. The following...