Winsor v. Ottofy

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

120 S.W. 693

140 Mo.App. 563

WILLIAM S. WINSOR, Appellant, v. L. FRANK OTTOFY, Respondent

Court of Appeals of Missouri, St. Louis

June 22, 1909

April 30, 1909, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.

AFFIRMED.

STATEMENT.--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 twelve or more holders of shares of stock in said company other than plaintiff and the members of his family, owning from one to one hundred 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 and the other stockholders $ 2,950, a total of $ 36,050. 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 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 up and that plaintiff had fraudulently misappropriated the assets of said corporation.

"That in and by the language contained in said letter defendant intended to charge the plaintiff with using the property of the corporation as his country home and that such use was detrimental to the interests of the stockholders of the said company and the persons to whom defendant caused said letters to be delivered understood said letter to charge plaintiff with improper use of said property.

"Plaintiff says that the contents of said letter are libelous, that the same were and are false and the same were and are malicious and were intended to defame and injure plaintiff in his character and reputation in the community in which he resides and does business.

"That plaintiff has and always has depended largely on his good reputation and credit as a builder and plumber.

"Plaintiff says that by reason of the libels aforesaid he has been harassed and vexed by inquiries made by said stockholders and that by reason of said libel a suit was instituted against plaintiff by one of the stockholders of said Homestead Orchard Company on the 12th day of October, 1906, charging this plaintiff with fraudulent misrepresentations in the sale of one hundred shares of stock in said Homestead Orchard Company, and that the defendant in this case, L. Frank Ottofy, is attorney for the plaintiff in said suit.

"Plaintiff says that he has been actually damaged by the said libel in the sum of five hundred (500) dollars for which he prays judgment.

"And that by reason of the false and malicious libel he has been further damaged in the sum of three thousand (3,000) dollars for which he prays judgment against defendant as punitive and exemplary damages and for his costs."

The answer of defendant admits writing the letter set out in the petition, and that he wrote and transmitted to other stockholders of the Homestead Orchard Company a similar letter. It denies every other allegation in the petition; avers defendant was holder and owner of five shares of the capital stock of the Homestead Orchard Company and as such was interested in the affairs of the company; that he wrote the letter by reason of being a stockholder and by reason of his interest as a stockholder, and that the statements made in the letter were made honestly and in good faith and were sent out to persons who were stockholders in the company, "and to whom he believed in good faith and in sincerity that he owed the duty of advising them of the facts set forth in said letter; and that said communications were privileged."

A general denial was filed in reply.

A jury being duly empanelled, and plaintiff sworn as a witness, defendant objected to the introduction of any evidence on the ground that the petition does not state facts sufficient to state a cause of action. The objection was sustained, whereupon plaintiff took a nonsuit with leave to move to set the same aside. This motion being filed and overruled, plaintiff excepting, judgment went for defendant, from which judgment plaintiff prayed an appeal to this court, which was granted, a supersedeas bond being filed and approved.

Judgment affirmed.

O'Neil Ryan and Wm. H. Clopton for appellant.

(1) The petition stated a cause of action, and the court under proper instructions should have submitted the case to the jury. Julian v. Kansas City Star, 209 Mo. 35; McGinnis v. Knapp, 109 Mo. 131; Ukman v. Daily Record, 189 Mo. 391; Sullivan v. Commission Co., 152 Mo. 275; Meriwether v. Knapp, 120 Mo.App. 354; Same v. Same, 211 Mo. 207; Brown v. Publishers, Geo. Knapp & Co., 112 S.W. 474; Brown v. Globe Printing Co., 112 S.W. 462; Julian v. Kansas City Star, 209 Mo. 78.

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