93 Mo. 485 | Mo. | 1887
The doíondriit bank had in its possession, at the commencement of this suit, a bond, executed by the Laclode & Fort Scott Railroad Company, toe ton-thousand dollars, dated December 2, 1879, due in three years, and paynHé to the order of the defendant, Kinealy. The plaintiff states that she is the ownor of the half interest in the bond; that Kinealy is insolvent; that the bank threatens to deliver the bond to him, and she prays for an inji!action. The nunver of Kinealy, in substance,
On the fifteenth of December, 1879, the defendant, Kinealy, gave to Harrison Attaway the following agceement: “I hereby promise and agree to transfer and deliver unto Mrs. Julia F. Attaway, one-half the proceeds of the ten thousand-dollar bond of the Laclede & Fort Scott Railroad Company, issued to me December 3,1879, when the same are collected, less any amount paid to J. /. Wigfall, and expenses. M. Kinealy.”
The important question in.the case is, whether this agreement is valid, or whether it was a corrupt contract and without consideration. To understand the evidence, having a direct hearing upon this issue, it is essential to give a succinct history of the affairs which gave rise to the issuance of the bond, and they are as follows: The Laclede & Fort Scott Railroad Company was organized in 1860. From 1872 to the date of the judgment of ouster hereafter mentioned, there- were two sets of directors, both claiming to have been legally elected. The one known as the Golehouse board had possession of the books and records. The company became wholly insolvent. Edward Burgess held a judgment against it for work done and materials furnished, ainounting.to nearly one hundred thousand dollars. In 1877, Burgess, Kinealy, and a few other persons, organized, under the general laws of this state, the St. Louis, Lebanon & Western
In February, 1878, Kinealy commenced a suit, at the relation of the circuit attorney and of Attaway, to . oust the Colehouse board. The proofs were all taken, and in May, 1878, Colehouse came to a settlement,' by which the new company agreed to pay him a stipulated sum. Thus the matters stood until, in 1879,- when this new company, the St. Louis, Lebanon & Western Railroad Company, failed to pay the stipulated sum to Cole-house, forfeited its agreement with the other compan;/, the stock, of which Kinealy was to get a fifth, became, worthless, and that company dropped out of existence! from its own inherent weakness. The directors of the Laclede & Fort Scott Railroad Company then desired Kinealy to prosecute the suit against Colehouse and others for them, but he declined to do it, unless they secured him a fee of ten thousand dollars for its successful prosecution. This they at first refused to do, believing the amount to be exorbitant. Finally, a contract for that amount was made, to be secured by bond and mortgage, and deposited for Kinealy on the successful determination of the suit. Kinealy prosecuted the suit to
Mrs. Attaway testified that she carried on a hotel; that her husband was her agent in this bond matter ; that she first knew, of the bond in 1882; that she did not know of the agreement to transfer the half to her until two or three months before this trial. Harrison Attaway, in substance, testified: “Kinealy gave me the agreement for moneys I had expended for my wife in bringing the quo-warranto suit to a successful termination. He agreed, if I would assist in' getting up the evidence, to pay me one-half the money he realized by the suit — one-half his fees. This agreement was made about the time the suit was brought. I spent five or six hundred dollars of my wife’s money in defraying expenses. The first intimation I had that my wife’s, interest in the bond was a gift, was Kinealy’s letter of May 3,1882.”
A number of witnesses, for the plaintiff, testified that Kinealy had, time and again, stated that Attaway owned half of the bond, and it is shown that, in 1882, he aided Attaway in an endeavor to sell the half interest. A. number of Kinealy’s letters to Attaway, written in 1882, were read in evidence; they speak of some unexplained transaction, but concede that Attaway owned half of the bond. In the letter of May 3, 1882, he says: “You speak of the money as being due to you. This is an incorrect way of putting it, as the matter was merely a gift, nothing having passed to me for it that I know of.” A payment of .two thousand dollars was made on the bond in March, 1882. Kinealy gave one thousand dollars of this to Attaway. A further payment was made in the following April, but this Kinealy refused to divide.
Kinealy flatly denies that he ever agreed to give Mrs. Attaway a one-half interest in the bond for the assistance of Attaway in the quo-warranto suit. Prom his and other evidence, it appears that Attaway was a
“ St. Louis, December 15, 1879.
“Ihereby promise and agree to transfer one-half of whatever amount I may receive from Mr. Edward Burgess, or the St. Louis & San Francisco Railroad Company, in connection with the transfer of the Laclede &*490 Fort Scott Railroad Company to the San Francisco Railroad Company.”
Attaway, in rebuttal, says lie attested the bond on the third of December, 1879; that he did not go to. Kinealy for the-agreement until two weeks thereafter; that Kinealy then said they were both working together and he wanted a writing to show his interest in the Burgess claim, and that the two agreements were made at the same time, and after the bond had been fully executed; that Burgess had offered to give him all of the judgment that could be collected in excess of fifty thousand dollars. Mr. Rogers, of the St. Louis & San Francisco Railroad Company, being called by the defendant, says he never offered Attaway any money or property in connection with the then projiosed transfer to that company ; and Mr. Burgess being asked if he had made any such jiroposition, said : “Not that I know of.”
It appears that, in .1880, the Laclede & Fort Scott Company made a contract with the Keystone Building Company, by which, the latter was to receive all of the mortgage bonds of the railroad company, and for these bonds to go on and complete the railroad. Concannon, who had a part in procuring this contract, says he bound the building company to deliver to Kinealy thirty thousand dollars of these bonds. Kinealy says he represented the building company, as its attorney, and was to have a fee of thirteen thousand dollars for getting this contract. He appears to have been the attorney also of the railroad company at this time. He says Attaway refused to vote for the contract, until he had secured ten thousand dollars of the bond's ; and that, thereafter, Attaway worked and voted for the contract. When asked why he paid Attaway the one thousand dollars, he said it was necessary to keep Attaway on his side, and that Attaway had agreed that the bonds should not be issued until he, Kinealy, was pres
From the conflicting evidence, and in the absence of a free and frank statement on either side, it is not easy to determine what are the real facts in this case. It is clear, we think, that the claim of the plaintiff that there was an agreement by Kinealy to share his fees with Attaway at the outset is unfounded. Until the St. Louis, Lebanon & Western Railroad Company ended its short career, there is no claim made that Kinealy was to receive any fee save the one-fifth of the stock of that corporation. Attaway never claimed any part of that; he assisted some in taking depositions, and so did the other directors, but they all had their claims for' expenses allowed. Attaway does not show that he was at any expense, not thus allowed by the directors of that company. The fact that Mrs. Attaway knew nothing of the bond until long after it was issued, and indeed not until this trouble arose, though she claims it because of the expenditure of her money, is of some significance. The circumstances are all opposed to the existence of any such contract from the beginning; and we conclude whatever arrangement there was between them arose after the new corporation dropped out of the controversy.
The effort of Kinealy to show that he was forced to give Attaway the agreement for one-half of the bond by a sort of duress is not entitled to any consideration. It has all the appearance of a sham. It is clear, too, that the two agreements were made, not when the bond was attested, but on the fifteenth of December thereafter ; this conclusion conforms to the dates of those papers, and circumstances, even of a slight character, must outweigh the conflicting statements of the parties. The consideration for the agreement of Kinealy to give Mrs.
An agreement of a director of a corporation to use his vote and influence to the disadvantage of the corporation, and in the interest and for the benefit of third
It results that the judgment must be reversed and the suit dismissed. It is so ordered.