11 Mo. App. 10 | Mo. Ct. App. | 1881
delivered the opinion of the court.
When counsel for the appellant (defendant below) stated his client’s case upon the argument, it seemed to us that he stated a plain right of action on the part of the plaintiff, to which no defence had been set up which could be listened to in a court of justice. But knowing that our first impressions are often erroneous, we have gone over the record and have endeavored to look at the case from every possible point of view : and the more we have looked at it, the more we have been confirmed in the impression which we acquired on the argument. The case is in the nature of an action for money had and received by the defendant to the plaintiff’s use.
The plaintiff in his amended petition states, “ that on or about the tenth day of August, 1876, at the request of defendant, he advanced to him the sum of $500 to aid the defendant to purchase from the Boatman’s Savings Bank, of said city, certain notes then held by said bank, made by the Guardian Building Company, of the same place, amounting to about $32,000, secured by a first deed of trust on the leasehold and building of said building-company, situated on the southwest corner of Washington Avenue and Fifth Street, in said city, then worth about $50,000; that said sum of $500 was advanced to defendant by plaintiff under an agreement with defend
“And plaintiff says that defendant did purchase said motes from said Boatman’s Savings Bank, but that he did not comply with his said agreement, but caused the said leasehold and building to be sold under said deed of trust, and bid in said property ^.t said sale about January 1, 1877, for said notes, and caused the title to said property to be made to him (defendant), in his individual right, without the knowledge or consent of plaintiff.
“And plaintiff says that, subsequent to said purchase by defendant of said leasehold and buildings, he (plaintiff) repeatedly asked defendant to form said corporation and issue to him said stock for his said advances made as aforesaid, and plaintiff says defendant abandoned the idea of a corporation against the wishes of plaintiff, and refused to take the stock which he had promised and agreed to take as aforesaid, and refused to issue to plaintiff stock for his said advance, all in violation of his duty and agreement as aforesaid ; that thereupon it became the duty of defendant to repay to said plaintiff his said $500, and interest on same; but plaintiff says that ever since his purchase of said leasehold and building, defendant has continuously collected large rents and profits from said property, and kept it wholly for his own use, and, though amicably requested so to do> has refused and still does refuse to pay to plaintiff his said $500, and interest from August 10, 1876, or- any part thereof.”
“ Denies each and every of the other material averments in said petition contained; and for a further plea in this behalf avers that the transaction sued for herein was a joint one with defendant by plaintiff and others made, the names of whom with said plaintiff interested are John Jackson, Patrick Burns, Christopher A. Ghio, Patrick C. Murphy, and Daniel Cahill; and for failing to make these associates hereto as plaintiff or defendant this suit should abate. Wherefore defendant prays judgment in his favor and for his costs.”
From the disclosures in the bill of exceptions, it would seem that the plaintiff’s counsel must have been fearful of some infirmity in his case, which we have been wholly un
“ Book of subscription for the Washington Avenue Building Association.
“ St. Louis, Mo.
“Subscription of stock for the Washington Avenue Building Association.
“ We, the undersigned, do each subscribe for, and agree-to become shareholders in the capital stock of the Washington Avenue Building Association, a corporation organized, or to be organized, under the laws of the state of Missouri. Articles of association of which corporation are submitted to us, and are to be recorded in the office of the recorder of deeds for St. Louis County, Missouri, whenever all the stock is fully subscribed, to the amount and number of shares set opposite our respective names.
“ The capital stock of said association is $40,000; each share is $100. And we respectively agree to pay our respective subscriptions in manner following, in four equal instalments, one-fourth in cash, and the balance in four, eight, and twelve months. We agree to execute our notes, of even date herewith, and bearing ten per cent per annum interest, payable to our own order, and indorsed by us in blank, said notes to be delivered to E. J. Beard.
“ It is further understood and agreed that certificates of stock are only to be issued upon the payment of our re*15 spective subscriptions in full; and, in case any default is made in the payment of our respective notes, or either one of them, then, in that event, the cash paid by us, or either of us, shall be forfeited to the association.
“ It is also agreed that the above subscribers will employ E. J. Beard, as agent to collect rents of the lessees of the property for a term of five years, and pay him out of the rents as collected, five per cent thereof for his services ; and that, in addition thereto, the association will pay him for his services, $2,000 within one year after its organization, which is to be in full compensation for his services.
Names of Subscribers. Shares. Amount.
Patrick Burns . 20 $2,000
P. C. Murphy . . 20 2,000
C. A. G-hio . . . 20 2,000
Daniel Cahill . 20 2,000
William Keane . . 5 500
Jno. Jackson . . 10 1,000”
And the following was the second : —
“ Received of Mr. William Keane, the sum of $125 cash and three notes of four, eight, and twelve months respectively, for $127.50 at ten per cent from date, the same to be applied to the purchase of the mortgage of the Guardian Building Association to the Boatman’s Savings Bank, now in the hands of E. J. Beard ; and when said notes are paid, Mr. William Keane will have an interest in the mortgage to the amount of $500. “ E. J. Beard.
“ C. C. Nichols.”
These documents, with the explanatory evidence, show that there was a corporation in St. Louis called “ The Guardian Building Company,” which had owned the building in question; that the Boatman’s Savings Bank held notes secured by a first deed of trust upon this property amounting in the aggregate to $39,266.75 ; that the Guardian Savings Bank had held the notes of this company to the extent of $15,000, secured by a second deed of trust
Upon such a case, no jury properly instructed, could have done otherwise than find for the plaintiff. The court might well have directed the jury so to find, without giving any other instructions. But, nevertheless, the learned judge put the case to the jury upon instructions offered by the plaintiff, and also upon instructions offered by the defendant, embodying their respective theories; and the jury, in finding for the plaintiff, must have found that the foregoing facts were true. The only error which we can perceive in the instructions, is an error in favor of the defendant. For, as we have already stated, it seems to us that the facts set up by the defendant constitute no defence to the action. It was error to tell the jury that if they found those facts to be true the plaintiff could not recover. If the judgment had gone for the defendant, we should have been compelled to reverse it upon this ground. The court refused but three instructions offered by the defendant, and they were as follows : — ->
“ The court instructs the jury that if they believe from the evidence that, the plaintiff subscribed under a written agreement with Hardy & Simmons, and in pursuance of such subscription paid the $500 to defendant in pursuance. of such written subscription with Hardy & Simmons, then plaintiff cannot recover unless such written agreement be shown.
‘ ‘ The court instructs the j ury that if they believe from the evidence that for the subscription by plaintiff to defendant made, defendant gave a receipt embodying the terms of the contract between them, in the absence of such receipt plaintiff is not entitled to recover.
“ If the jury find from the evidence that the receipt read*18 in evidence constitutes the contract between the parties, and was drawn to embody the terms of the contract between them, then the plaintiff is not entitled to recover.”
It would have been nonsense to give the first, because the written subscription in pursuance of which the plaintiff paid the $500 was in evidence. It was put in evidence by the defendant, against the objection of the plaintiff. The same may be said of the second instruction. There was no “ absence of such receipt;” the defendant himself put it in evidence against the objection of the plaintiff.
The third instruction was also rightly refused. This instruction embodied in a sentence the whole defence, and, as we have already stated, it is no defence whatever. The written receipt above set out could not rightfully be treated aB the only contract between the parties. It was not sufficiently specific and definite in its terms to exclude parol explanation. The court did right in letting in parol evidence as to what the contract really was. The receipt merely showed that the plaintiff was to have an interest in the notes held by the Boatman’s Bank in proportion to the $500 advanced! by him, but it said nothing more ; it did not tell how that interest was to be expressed — how it was to be worked out, what was to be done with the notes when purchased, what evidence the plaintiff was to receive of his interest in this purchase, or how his interest was to be declared so as to assume the nature of vendible property. Manifestly, it did not embody the entire understanding of the parties, and its very indefiniteness indicated the existence of a suppletory understanding or contract. This suppletory understanding has been fully shown by the subscription-book of the Washington Avenue Building Association, which the defendant put in evidence, and by the testimony of his own witnesses, Nichols and Lubke.
But suppose it had not been shown ; suppose the rights of the parties stood upon this receipt alone as the only contract existing between them, and what then is the case?
There is but one other question which seems to justify consideration. The defendant pleads that the transaction in question was a joint one in which John Jackson, Patrick
The plaintiff, then, has his election between an action at law and a suit in equity, and he cannot be turned out of court because he chooses the former.
The judgment of the circuit court is affirmed.