77 Mo. App. 346 | Mo. Ct. App. | 1898
The Schaaf-Fries Dry Goods Company was incorporated with a capital stock of $12,000. The shares of stock were of the par value of $100 each. John G. Schaaf owned fifty-nine shares of the stock, and his wife one share. Oscar Fries and his wife owned the remaining shares. Schaaf died March 1, 1896. In March, 1895, he borrowed of Theresa Fries, the mother of Oscar Fries, $1,900, for which he executed his note. This note matured, to wit, March 23,1896, subsequent to the death of Schaaf. To secure this note Schaaf hypothecated his fifty-nine shares of stock in the dry goods company. The note provided that in case of default in its payment, the shares of stock might be sold by Mrs. Fries at public or private sale, without notice of the sale or demand for the payment of the money. There was no administration on the estate of Schaaf, until the eighth day of May following his death. On that day letters were granted to Elizabeth Schaaf, the plaintiff, herein, the note having matured, and being unpaid, Mrs. Fries, to wit, on April 18, 1896, sold the shares of stock at private sale to Oscar Fries for $1,900. The amount of the sale was credited on the Schaaf note. When the plaintiff, who is the widow of Schaaf, learned of the sale, she applied for and was granted letters of administration on the estate of her husband, and she thereupon as such administratrix brought this suit for damages against Theresa and Oscar Fries, in which she charges in substance, that upon the death of Schaaf the defendants fraudulently conspired and confederated to obtain for Oscar Fries the interest of the estate of Schaaf in the corporation for less than it was worth, and to this end Mrs. Fries made a pretended
The answers of the defendants are in substance general denials. Upon a trial before a jury, a verdict for $2,400 was returned. On the hearing of the motion for a new trial the circuit court was of the opinion that the verdict was excessive to the amount of $500. Thereupon the plaintiff remitted that amount and judgment was entered for $1,900. The defendants have appealed.
The circuit court refused to direct a nonsuit. The defendants complain of this. The argument is, that by the terms of the note Mrs. Fries was not legally bound to give notice of the sale to any one, and therefore the plaintiff can not complain of a want of notice, nor base her action on a failure to give it, and that as evidence of the want of such notice was all that plaintiff relied on to prove the alleged fraud, the nonsuit ought to have been granted. It is true that notice to the heirs of Sehaaf was not essential to a valid sale, but Mrs. Fries was bound as pledgee to exercise good
It is insisted that the instructions given by the court on its own motion fail to state all the precedent conditions of the plaintiff’s right to recover. After reciting the facts attending the alleged fraudulent combination, and which the plaintiff’s evidence tended to prove, the jury was told that if they found those facts to be true, and that the sale made by Mrs. Fries was for an amount which was less than the fair and reasonable value of said stock at the time of said sale, then the finding should be for plaintiff, etc. For the defendants the court instructed in effect that even though the sale was recklessly made without regard to the rights of the estate, and that the stock was worth a sum in excess of the amount realized therefor, yet the plaintiff could not recover, unless “at said time such greater sum could have been realized for the same.” It is insisted that these instructions are inconsistent and irreconcilable in that the instruction of the court told the jury that if the reasonable value of the stock was in excess of the amount it sold for, the plaintiff could recover, whereas under the defendants’ instruction there could be no recovery, unless the reasonable value or greater sum could have been realized for the stock. These instructions are not inconsistent. It is true that the instruction of the court only presented a partial view, but it did not state erroneous precedent conditions as to the right of recovery. It merely failed to note the affirmative matter upon which defendants relied to mitigate the damages or defeat the action entirely. The better practice is, where an instruction assumes to state all the facts necessary to a recovery, it ought to direct the attention of the . . jury to all affirmative defenses of which there is any substantial proof. But if it fails to do so, and the omission is supplied by the instructions on the
It was admitted that the shares of stock in controversy had no market value. It was a close corporation. To determine its value it became necessary to prove the value of the assets of the company, which consisted entirely of a stock of goods. In February, 1896, the company was embarrassed financially, and there were rumors on the street of a probable failure. One Richard Meyer, an experienced dry goods merchant, and buyer for Nugent Brothers, having heard the rumors, visited the store with the view of ascertaining the probable value of the stock. The storeroom was about seventy-five feet long, with an upper floor. The stock was on both floors. Meyer remained in the store about twenty or twenty-five minutes. In making his
Under the authorities we think it clear that Meyer was not qualified to give his opinion as to the value of the stock. He did not know and could not know whether the boxes and drawers were full of goods, or only half full, or were entirely empty. He knew nothing about the goods on the upper floor, because he did not see any of them. He did not say that the goods he did see were worth the amount stated by him. As his estimate of value was far in excess of that claimed by the defendants his testimony was necessarily prejudicial to them.
Charles Krone, an attorney at law, testified for the defendants. He stated that in the spring of 1896, he was engaged by Mrs. Sehaaf to look after her-interests in the dry goods'eompany; that he thereupon visited Mr. Arnstein, the attorney of Mrs. Pries, for-the purpose of getting what' information he possessed as to the condition of the business; that Mr. Arnstein told him that Mrs. Pries held the stock of Sehaaf as collateral to secure the $1,900 note, and that if Mrs. Sehaaf would pay the note Mrs. Pries would gladly turn over the-stock to her. The defendants then offered to prove by the witness that he communicated those facts to Mrs. Sehaaf. The court on the objection of plaintiff refused to allow the witness to testify, on the ground that the-imparting of this information by Krone to Mrs. Sehaaf,,
With the concurrence of the other judges the judgment of the circuit court will be reversed and the cause remanded. It is so ordered.
SEPARATE OPINION BY
On this appeal the appellant is in no position to-complain of the insufficiency of the evidence to support the verdict, since his own instructions submitted, the case to the jury upon the hypothesis that there-was substantial evidence tending to show a breach of duty in the disposition of the pledged stock. Berkson v. Railway, 144 Mo. loc. cit. 219; Water Co. v. City of Neosho, 136 Mo. loc. cit. 508; Hartman v. Railway, 48 Mo. App. loc. cit. 624; Seiter v. Bischoff, 63 Mo.,