Winsor v. Ottofy

• Decision Date: 22 June 1909
• Citation: 120 S.W. 693,140 Mo. App. 563
• Parties: WINSOR v. OTTOFY.
• Court: Missouri Court of Appeals

120 S.W. 693

140 Mo. App. 563

WINSOR v. OTTOFY.

St. Louis Court of Appeals. Missouri.

June 22, 1909.

1. LIBEL AND SLANDER (§ 6)—LETTER AS BEING LIBELOUS PER SE.

A letter from one corporate stockholder to another, claimed to be libelous, stated that the writer desired the co-operation of stockholders in proceedings for a receiver, and that he believed from the facts in his possession that in no other way would the stockholders ever realize a dollar on their investment; that he had thus far unavailingly endeavored to secure an inspection of the books and accounts; that shortly before he was permitted to inspect the insufficiently kept records, containing minutes of meetings and the stock book showing that plaintiff and his wife were the owners of a large majority of the shares; that, if the stock was fully paid as it was represented to be, it would mean that plaintiff and his wife and the other stockholders should have paid him a large sum specified, but that he found from the records that a loan was secured on all the corporate property; and that he was informed that it was all now used by plaintiff as his country home. Held, that the letter was not libelous per se as charging the fraudulent mismanagement and misappropriation of corporate funds or assets, and improper use of corporate property.

2. LIBEL AND SLANDER (§ 82)—PETITION— LETTER NOT LIBELOUS PER SE—USE OF INNUENDO —NECESSITY OF COLLOQUIUM.

A letter not being libelous per se, the use of the innuendo in a petition based thereon is not sufficient, but there should be a colloquium to show that the language was used in such connection and in such sense as to make it libelous.

3. PLEADING (§ 22)—IMMATERIAL AVERMENT.

In a petition for libel based on a letter by defendant as a stockholder to another stockholder of a corporation claimed to charge mismanagement and misappropriation of funds or assets, an averment that defendant was an attorney at law, and was the attorney of a party who had sued plaintiff, is entirely outside of the case.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by William S. Winsor against L. Frank Ottofy for libel. From a judgment for defendant, plaintiff appeals. Affirmed.

The petition on which this case went to trial is as follows:

"For amended petition, plaintiff alleges: That he is and at the times hereinafter mentioned was a resident and a citizen of the city of St. Louis, state of Missouri, and by occupation a builder and plumber, enjoying the confidence, esteem, and patronage of many people in said city. That at said times he was a stockholder in and was president of the Homestead Orchard Company, a corporation organized under the laws of Missouri for the following purposes: To buy, plant, cultivate, own, conduct, and sell orchards and gardens, and to deal in all descriptions of fruit and fruit products in the state of Missouri, and own any and all property which may be necessary and incident to the conduct of said business. That there were at said times 12 or more holders of shares of stock in said company other than plaintiff and the members of his family, owning from 1 to 100 shares of stock. That the defendant is and was at said times an attorney at law engaged in the practice of law in the city of St. Louis, state of Missouri. That on the 5th day of September, 1905, defendant maliciously published of and concerning plaintiff the following letter: `302 Laclede Building. St. Louis, Mo., Sept. 5, 1906. James P. Mayo, Esq., 4026 N. 9th St., City— Dear Sir: You appear as the record owner of (5) shares of the capital stock of the Homestead Orchard Co., wherein I also am a stockholder. I desire to secure the co-operation of the stockholders in the institution of legal proceedings having in view the appointment of a receiver for the corporation, as I believe from the facts in my possession that in no other way will the stockholders ever realize one dollar upon their investment. Since July 19th I have been endeavoring to secure an inspection of the books and accounts but thus far unavailingly. On August 1st, I was permitted to inspect insufficiently kept records containing minutes of meetings and the stock book. These records show that Wm. S. Winsor and his wife are the owners of 3310 shares, whereas all the other stockholders are only shown to have 295 shares of stock. If the stock was what it was represented to be, viz.: full paid, this would mean that Wm. S. Winsor and wife should have paid in $33,100.00 and the other stockholders $2,950, a total of $36,050.00. The fact however as I find it from these records is, that on February 5th, 1906, a loan of $2,000 was secured on all property of the corporation and I am informed that all of its property is now used by the president as his country home. I shall be pleased to have you signify your intention to join with the other stockholders who have agreed to take legal steps and shall take pleasure in giving you all the information in my possession. A similar letter has been sent to all the stockholders. Very truly L. Frank Ottofy.' The said letter was signed by the defendant and caused to be delivered by him to all the stockholders of the said Homestead Orchard Company. That in and by the language contained in said letter defendant intended to charge and did charge, the plaintiff with dishonestly misappropriating the funds of said Orchard Company, and the persons to whom defendant caused said letters to be delivered understood said letter to charge the plaintiff with misappropriating the funds of said corporation. That in and by the language contained in said letter defendant intended to charge the plaintiff with misrepresenting that the stock of said corporation was fully paid stock, and that plaintiff and his wife should have paid in the sum of $33,100 and other stockholders the sum of $2,950, which they had not done, but that on the 5th day of February, 1906, a loan of $2,000 was secured on all property of the corporation, thereby intending to charge plaintiff with fraudulently misappropriating the funds of said corporation and fraudulently mismanaging the affairs of said corporation. Plaintiff says the persons to whom said defendant caused said letters to be delivered understood said letter to charge that plaintiff had misrepresented that said stock was fully paid up, when in truth and in fact said stock was not fully paid, and that plaintiff had...