| Mo. | Dec 22, 1906
This is an appeal by defendant Keasby from a decree of the circuit court of Jasper
The petition states the case in effect as follows:
Plaintiff and defendant Keasby entered into a contract to organize a corporation-to purchase the property and business of the Joplin Brewing Company and to erect and' operate a. large brewery in Joplin. Keasby was to enlist the interest of capitalists to obtain the financial means necessary, and plaintiff was to render his personal services in promoting the project, and for his services the plaintiff was to be given five per cent of the capital stock. The plaintiff rendered the services promised, Keasby enlisted the necessary money interest resulting in the organizing of the defendant corporation, the Middle West Brewing. Company, under the laws of Missouri with a capital stock of $400,000, and in the purchase by the latter of the property and business of the Joplin Brewing Company. But defendant Keasby so conducted the organization of the corporation as that the plaintiff was left out of its list of shareholders and got none of the stock, but Keasby took to himself and now holds stock to the amount of $200,000, par value. There is none of the stock on the market and plaintiff is without remedy unless the court will compel Keasby to perform the contract specifically.
Defendant Keasby’s answer was a general denial; if there was any answer for the other defendants the abstract does not show it.
By stipulation of the parties, certificates of stock to the amount of $20,000 par value, as claimed by the plaintiff, were issued by the defendant the Middle West Brewery Company to the clerk of the circuit court, as trustee, to abide the judgment of the court in this case, and to be assigned to the plaintiff to satisfy his claim
The evidence at the trial justified the finding” by the court of the issues in favor of the plaintiff. The' contract as alleged was substantially proven and the plaintiff rendered important services in the promotion of the enterprise. The contemplated corporation was not formed exactly as planned, but its formation as it. was, with its variation from the original plan, was the work of the defendant, and should not prejudice the plaintiff’s right. The parties have achieved substantially what they started out to accomplish.
The defense is made that the plaintiff’s remedy is at law for a breach of the contract and not in equity for a specific performance.
The evidence shows that there is none of this stock on the market and there is no way, at least no available way, of proving the value of the stock or the amount of plaintiff’s damages resulting from a breach of the contract. Under such circumstances the remedy at law is inadequate and a specific performance will be decreed. [Waterman on Specif. Perf., sec. 19; Johnson v. Brooks, 93 N.Y. 337" court="NY" date_filed="1883-10-02" href="https://app.midpage.ai/document/johnson-v--brooks-3622421?utm_source=webapp" opinion_id="3622421">93 N. Y. 337; Frue v. Houghton, 6 Colo. 318" court="Colo." date_filed="1882-12-15" href="https://app.midpage.ai/document/frue-v-houghton-6561087?utm_source=webapp" opinion_id="6561087">6 Colo. 318.]
The judgment is affirmed.