Zandt v. St. Louis Wholesale Grocer Co.
| Decision Date | 30 December 1916 |
| Citation | 190 S.W. 1050,196 Mo.App. 640 |
| Parties | N. L. VAN ZANDT, Respondent, v. ST. LOUIS WHOLESALE GROCER COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted, November 13, 1916.
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
REVERSED.
Judgment reversed.
Collins Barker & Britton, Boaz B. Watkins and C. E. Kimball, Jr. for appellant.
(1) The motion of defendant, St. Louis Wholesale Grocer Company, for a new trial on the ground that the second count of plaintiff's petition does not state facts sufficient to constitute a cause of action, should have been sustained. New York & New Haven Railroad Co. v. Ketchum, 27 Conn. 179; 10 Cyc. 265; Thompson on Corporations (2 Ed.) sec. 88; Cushion Heel Shoe Co. v. Hartt, 103 N. E. (S.Ct. of Ind.), 1063; R. I. & St. L. Rd. Co. v. Sage, 65 Ill. 328; Hayward v. Lessen, 175 Mass. 320; Van Noy v. Ins. Co., 168 Mo.App. 287; Blackwell v. Adams, 28 Mo.App. 61; Davis v. Creamery Assn., 63 Mo.App. 477. (2) Promoters stand in a flduciary relation toward a projected corporation. Brooker v. Trust Co., 254 Mo. 156; Yale Gas Stove Co. v. Wilcox, 25 L. R. A. 90; Hayward v. Lessen, 49 L. R. A. (Mass.) 725. (a) This relation extends to a corporation as a legal entity. South Joplin Land Company v. Case, 104 Mo. 572-578; Exter v. Sawyer, 140 Mo. 302; Chandler v. Bacon, 30 F. 538. (b) It extends also toward the stockholders in respect to their property right. Brooker v. Trust Co., 254 Mo. 156; Cushion Heel Shoe Co. v. Hartt, 103 N.E. 1063. (2) The law is well settled that contracts made for a projected corporation by its promoters, are not binding upon it. Van Noy v. Ins. Co., 168 Mo.App. 287; States ex rel v. Bank, 197 Mo. 574; Davis & Rankin v. Creamery Assn., 63 Mo.App. 477; Hill v. Gould, 129 Mo. 106. (3) There was no consideration for the alleged promise to pay for the services rendered by the promoter. Furniture Co. v. Crawford, 127 Mo. 364; Contracting Company v. Construction Company, 150 Mo.App. 505. (4) There is no allegation in the petition that plaintiff disclosed to prospective subscribers to stock that he was to receive any personal profit. Exter v. Sawyer, 146 Mo. 302; Garrett v. Kansas City Coal Mining Co., 113 Mo. 330; Brooker v. Trust Company, 254 Mo. 157; South Joplin Land Company v. Case. 104 Mo. 572-578; Pitts v. Steele Mercantile Co., 75 Mo.App. 231. (5) Defendant St. Louis Wholesale Grocer Company's demurrer to the evidence at the close of the plaintiff's case should have been sustained. (a) There was no evidence introduced to show that the services rendered by the paintiff were worth more than $ 1700. Bradner v. Rockdale Powder Co., 115 Mo.App. 102. Also cited with approval in Woodward v. Donnell, 146 Mo.App. 119. (b) There was no evidence to show that the defendant, St. Louis Wholesale Grocer Company, contracted or agreed to pay a reasonable value for plaintiff's services, but proof to the contrary tends to show a contract for one-half of one per cent. of the gross sales of the defendant company during a period of five years, which constitute a variance between allegation and proof. (6) While the appellate court will not ordinarily disturb the verdict of the jury on the question of the weight of the evidence, it will not hesitate to do so when the verdict is not supported by the evidence. Lyons v. Corder, 253 Mo. 539, 561; Graney v. St. Louis, I. M. & S. Ry. Co., 157 Mo. 222; Powell v. Mo. Pac. Ry. Co., 76 Mo. 84; McFarland v. Accident Assn., 124 Mo. 222; O'Donnell v. Railroad, 152 Mo.App. 614; Fitzjohn v. Transit Co., 183 Mo. 78; Knisely v. Leathe, 178 S.W. 461; College v. Dockery, 241 Mo. 522. (7) The court erred in granting plaintiff's instruction number two; this for the reason that instruction assumes material and controverted facts. Comer v. Taylor, 82 Mo. 341. (a) The instruction unduly and improperly emphasizes the erroneous theory that the $ 1700 paid plaintiff was not paid for services and expenses, but for expenses alone or even a part payment for expenses. (b) The instruction ignores the pleading and uncontroverted evidence of the plaintiff himself, that his expenses were paid for in full and instructs the jury that they may find additional expenses as part of the plaintiff's damage. (c) The instruction ignores the defendant St. Louis Wholesale Grocer Company's defense and does not cover all the issues raised by the pleadings. Holmes v. Board of Trade of K. C., 81 Mo.App. 143; Moyes v. Railroad Company, Mo. (not yet officially reported).
Emerson E. Schnepp for respondent.
(1) When a number of persons not incorporated, but associated for a common object, intending to procure a charter, authorizes acts to be done in furtherance of their object by one of their number or a third person, with the understanding that he should be compensated, if such acts were necessary to the organization and its objects, and are accepted by the corporation and the benefits enjoyed, they must be taken cum onere and be compensated for. Taussig v. St. Louis & Kirkwood Ry. Co., 166 Mo. 28, 38; Railroad v. Christy, 79 Pa. St. 54, 59; Girard v. Case Bros. Cutlery Co., 225 Penn. St. 327, 333; Farmers' Bank of Vine Grove v. Smith, 105 Ky. 816, 820; Low v. Railroad, 45 N.H. 377-378; Railroad v. Perry, 37 Ark. 164, 187; Hall v. Vt. & Mass. R. Co., 28 Vt. 401, 407; Thompson on Corporations, (2 Ed.), secs. 89, 92; Taussig v. Railroad, 186 Mo. 269, 276, 277. (2) The assignment of error that there is no evidence to show that plaintiff's services were worth more than $ 1700 is without merit. Seyers v. Craven, 107 Mo.App. 407; 40 Cyc. p. 2855; Ferris v. Edmondson, 124 Mo.App. 94; Alden v. Gross, 25 Mo.App. 123; Floerke v. Teuscher Distilling Co., 20 Mo.App. 76. (3.) There is no error in plaintiff's instruction No. 2, and this form has been approved by the Supreme Court. Taussig v. Railroad, 186 Mo. 269, 277.
Plaintiff commenced his action against the defendant and three individuals.
The petition contained two counts, the first count sounding in damages for breach of an express contract of employment. As there was a verdict and judgment for the defendant on that count, and plaintiff has not appealed, it is unnecessary to set out that count in full, but we will hereafter have occasion to refer to it.
The second count avers that the defendant St. Louis Wholesale Grocer Company, is a corporation organized and existing under and by virtue of the laws of this State, engaged in the wholesale grocery business; that on January 1, 1911, and thereafter, the defendants Kelly, Lukenbill and Vandeloecht were seeking to organize among retail grocers a corporation on the co-operative plan for the purpose of engaging in the wholesale grocery business in the city of St Louis, to be known as the St. Louis Wholesale Grocer Company; that at the special instance and request of the defendant, plaintiff undertook the work of organizing and promoting that company among the retail grocers of St. Louis and the surrounding country of Illinois and Missouri; that beginning on or about January 1, 1912, and at the special instance and request of defendants (meaning the individual defendants), plaintiff began to and did visit the retail grocers in St. Louis, throughout central and southern Illinois, eastern and southern Missouri, and all other territory contiguous to St. Louis; that he explained the co-operative plan of the proposed company to the retail grocers, secured their patronage and good will and solicited and procured their subscriptions to stock in the company defendant, attended the preliminary organization and meetings of that company, frequently consulted with and advised the officers thereof, of which preliminary organization the defendant Kelly was president, defendant Lukenbill secretary, and defendant Vandeloecht treasurer, and that plaintiff did all things needed and necessary for the complete organization of the corporation, so that in February, 1912, by reason of the work and services of plaintiff as above set out, the St. Louis Wholesale Grocer Company was incorporated under the laws of Missouri with a capital stock of $ 50,000, one-half fully paid, and at once engaged in the wholesale grocery business in the city of St. Louis, and at the time of the institution of this action, was and is engaged in that business. It is further averred that the defendant Kelly was and is the president of the corporation, and the defendant Vandeloecht was and is its treasurer, and that the defendant Lukenbill and the two individual defendants above named, were and are three members of its board of directors. It is further averred that immediately after its organization, the St. Louis Wholesale Grocer Company, hereafter for brevity called the corporation or company defendant, "approved of and accepted all the work and services of plaintiff in the promotion and organization of said corporation as aforesaid, assumed all liability therefor, and the payment to plaintiff of the reasonable value thereof; that thereafter under the directions and approval of defendant corporation, plaintiff continued the work of soliciting and procuring subscriptions for the capital stock of said company as aforesaid until about May 7, 1912." Plaintiff then avers "that he devoted all of his time from January 1, 1911, to about May 7, 1912, and his best efforts to the aforesaid work; that he has paid all his expenses of every kind during said time; that defendants promised to pay him the reasonable value of said services so performed as aforesaid, and his expenses, which is $ 10,000," but that defendants now refuse to pay plaintiff that sum or any part thereof except $ 1700 heretofore paid to him by them. Judgment is demanded in...
To continue reading
Request your trial