| Mo. Ct. App. | Apr 4, 1904
The plaintiff sues to recover a commission for the alleged sale of 1,251 shares of the capital stock of the First National Bank of Buchanan county, Missouri, upon an alleged agreement between himself and defendants for which he was to receive one dollar per share.
There was evidence to the effect that in 1902 defendants owned certain shares of the capital stock of the bank aforesaid, at which time defendant Ford agreed with plaintiff if he could find a purchaser for 1,251 shares or majority of said bank stock he would allow him his usual commission for such sale which said Ford knew was one dollar per share. At the time of this alleged agreement Ford only owned 459 shares; but Ford and McAlister together did own 1,251 shares of the bank stock. There was no evidence that the latter authorized
During the trial below Mr. Tootle testified, that he wanted 1,600 shares of said stock because that much would be two-thirds of the bank’s entire capital and he would thereby get complete control of the said bank which would have enabled him to have liquidated its affairs. He stated, however, that he would have been willing to have taken the 1,251 shares. He also testified that when his agreement was made with Ford that the latter should transfer him 1,600 shares of stock it was also agreed that he was to be furnished with a list of bills receivable and payable and that Ford was to prepare the papers evidencing the transaction of the -sale. Witness Tootle further stated that Ford had telephoned him in reference to the matter at which time he (Tootle) asked him over the telephone: “How soon do you think you can get up those papers'?” to which Ford replied: ‘ ‘ It will be towards the latter part of the week, ’ ’ whereupon witness had asked: “Mr. Ford, will you want a supplementary written agreement with reference to that matter?” to which Ford answered: “No, so far as we are concerned we won’t require it.” Tootle then replied to this, “We would not ask for it then.”
The. stock in question here was afterwards sold to
Upon the trial the case was dismissed as to defendant McAlister. The verdict of the jury was for the defendant Ford.
The appellant’s sole complaint is- that the court committed error in giving on its own motion the following instruction:
“The court instructs the jury that if they believe from the evidence that at any time during the summer of 1902 the defendant was the owner of one or more shares of the capital stock of the First National Bank of Buchanan county, Missouri, and that other parties owned the balance of said capital stock, and that he disclosed those facts to the plaintiff, and that he empowered plaintiff to sell for him his said shares of stock and guaranteed to plaintiff that the other -stockholders of said bank would authorize him, plaintiff, to sell such a number of their shares of said stock as added to his own would equal to or exceed 1,251 shares of the capital stock of said bank for the price and sum of $130 per share and agreed to pay plaintiff a commission of one dollar per share in case he should effect the sale, and if you further believe from the evidence that pursuant to said agreement, plaintiff during the month of September or October, 1902, found purchasers who were ready and willing and able to purchase and did purchase or contract to purchase over 1,600 shares of said stock, and pay therefor the price and sum of $130 per share, then you will find your verdict for the plaintiff in a sum not -to exceed $459. ’ ’
The objection to said instruction is twofold, viz.: That it required plaintiff to prove that defendant Ford guaranteed to him that the other stockholders of said bank would authorize plaintiff to sell such a number of shares of said stock as added to his own would equal or exceed 1,251 shares of the same. The complaint is well founded as the plaintiff did not sue upon any guar-
For the error noted the cause is reversed and remanded.